Stanford Law Review
Volume 72

March 2020

ARTICLE

The Myth of Personal Liability:
Who Pays When Bivens Claims Succeed
James E. Pfander, Alexander A. Reinert & Joanna C. Schwartz*
Abstract. In Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law
creates a right to sue federal officials for Fourth Amendment violations. For the last three
decades, however, the Court has cited the threat of individual liability and the burden of
government indemnification on agency budgets as twin bases for narrowing the right of
victims to secure redress under Bivens. In its most recent decisions, Ziglar v. Abbasi and
Hernandez v. Mesa, the Court said much to confirm that it now views personal liability less
as a feature of the Bivens liability rule than as a bug. But, to date, there has been no
empirical examination of who pays when Bivens claims succeed.
This Article studies the financial threat that successful Bivens claims pose to federal officers
and their employing federal agency. Information supplied by the Federal Bureau of
Prisons in response to a Freedom of Information Act request identified successful Bivens
actions over a ten-year period; in the vast majority of cases (over 95%), individual
defendants contributed no personal resources to the resolution of the claims. Nor did the
responsible federal agency pay the claims through indemnification. The data suggest, in
short, that recent hostility to Bivens litigation rests on a perceived threat of personal
liability that is much more theoretical than real. The data also raise important questions
about the adequacy of existing constitutional remedies and the manner in which the
Department of Justice exercises its settlement authority under the Federal Tort Claims Act
and the Judgment Fund.
*

James E. Pfander is the Owen L. Coon Professor of Law, Northwestern Pritzker School of
Law; Alexander A. Reinert is the Max Freund Professor of Litigation & Advocacy and the
Director of the Center for Rights and Justice, Benjamin N. Cardozo School of Law; and
Joanna C. Schwartz is a Professor of Law, UCLA School of Law.
We thank Dick Fallon, Paul Figley, Greg Sisk, and participants in faculty workshops at
the Northwestern Pritzker School of Law and the Benjamin N. Cardozo School of Law for
comments on early drafts. We are also grateful to Wade Formo for able research
assistance, and to Ethan Amaker, Hannah Begley, Nicole Collins, Lori Ding, Nathan
Lange, Elizabeth Reetz, Aletha Smith, Gregory Terryn, Reid Whitaker, and the editors of
the Stanford Law Review for excellent editorial assistance.

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Table of Contents
Introduction ............................................................................................................................................................563
I.

Constitutional Torts, Personal Liability, and Ziglar ...............................................................569
A. Constitutional Claims and the Bivens Action ...................................................................569
B. Suits for Damages Under the Federal Tort Claims Act ..............................................571
C. Personal Liability and the Decline of the Bivens Action .............................................574

II.

Bivens in Practice: A Study of Who Pays to Resolve Well-Grounded
Constitutional Tort Claims ..................................................................................................................578
A. Cases in Which Employees Contributed to the Payment of Settlements
and Judgments ...................................................................................................................................580
B. Cases in Which Employees Made No Compensating Payments ..........................583
1. Dismissal of Bivens claims during litigation ...........................................................584
2. Settlement of Bivens and FTCA claims with payment by the U.S.
government ..............................................................................................................................585
3. Substitution of FTCA claims for Bivens claims as a condition of
settlement...................................................................................................................................586
a. Formal substitution ...................................................................................................587
b. Informal substitution ................................................................................................593
C. The Impact of Judgment Fund Payments on the Bureau of Prisons ...................594

III. Implications ...................................................................................................................................................596
A. Constitutional Torts and Individual Deterrence After Ziglar ................................597
B. Agency Incentives and the Role of Indemnification....................................................601
C. The Department of Justice Narrative of Personal Liability ....................................605
D. Payment Practices, Transparency, and Congressional Oversight of the
Judgment Fund..................................................................................................................................609
E. On the Need for Future Research and the Uncertain Future of the Bivens
Action .....................................................................................................................................................615
Conclusion................................................................................................................................................................621
Appendix A: Methodology ..............................................................................................................................623
Appendix B: Data ..................................................................................................................................................627

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Introduction
Since its 1971 decision in Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics,1 the Supreme Court has been of two minds about the
impact of constitutional tort litigation on the workaday incentives of federal
officials. On one side, the Court has emphasized the importance of deterring
constitutional violations through the imposition of personal, tort-based
liability payable by the officer herself.2 On the other side, the Court has
increasingly worried about the burden of such liability, fearing it will
overdeter federal officials and undermine the government’s ability to respond
in times of crisis.3 Reflected in the Court’s 2017 decision in Ziglar v. Abbasi, and
echoed more recently in Hernandez v. Mesa,4 such worries about official liability
have fueled an expansion of immunity defenses, as well as a growing hostility
to the recognition of any right to sue under the Bivens doctrine.5
The Court and its scholarly interlocutors display a similar ambivalence
about the question of who ultimately bears the burden of Bivens liability. The
Court, for its part, often treats Bivens as posing a threat of substantial personal
liability that counsels against recognizing new rights to sue. On other
occasions, the Court has sounded notes of caution for a different reason: It has
worried that the expansion of Bivens liability would impose substantial
1. 403 U.S. 388 (1971).
2. See Carlson v. Green, 446 U.S. 14, 21 (1980) (noting that the Bivens right to sue serves

both a compensatory and deterrent purpose); Butz v. Economou, 438 U.S. 478, 505
(1978) (same).
3. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1863 (2017) (“If Bivens liability were to be imposed,
high officers who face personal liability for damages might refrain from taking urgent
and lawful action in a time of crisis.”); see also Hernandez v. Mesa, 140 S. Ct. 735, 742
(2020) (describing Congress as the institution best situated to evaluate the imposition of
“monetary and other liabilities” on “individual officers and employees of the Federal
Government” (quoting Ziglar, 137 S. Ct. at 1856)); Schweiker v. Chilicky, 487 U.S. 412,
425 (1988) (speaking of difficulties created by the “prospect of personal liability” if a
Bivens remedy is recognized); Bush v. Lucas, 462 U.S. 367, 389-90 (1983) (declining to
find a Bivens remedy in part because of the impact of “added risk of personal liability”);
Harlow v. Fitzgerald, 457 U.S. 800, 809, 814-15 (1982) (reshaping immunity in part to
moderate the threat of personal liability).
4. 140 S. Ct. at 742 (stating that judicial recognition of a damages remedy “must rest at
bottom on a statute enacted by Congress”).
5. See Ziglar, 137 S. Ct. at 1858-69 (discussing and narrowing the right to sue recognized in
Bivens and applying a broad conception of qualified immunity). The Ziglar Court
expressed some concern about the administrative burdens of participating in discovery
and trial, but those burdens would also fall on government officials in suits seeking
habeas corpus or injunctive and declaratory relief—forms of relief apparently accepted
by the Court. See id. at 1862-63 (discussing the availability of habeas and injunctive
relief to address detention policy claims). In the interest of full disclosure, we note that
Alexander Reinert was one of the lawyers who represented the respondents in Ziglar
before the Supreme Court, and he continues to represent them in district court.

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indemnification costs on the government and burden the fisc.6 Scholars have
been similarly nimble; they often (but do not invariably) assume that the
government will indemnify its officers, thereby shifting the incidence of
liability from the individual defendant to the indemnifying agency.7 While
scholars debate the incentive effects of competing liability rules,8 these debates
have been mostly theoretical. We know of no study that examines how the
government resolves successful Bivens claims and where the burden of
compensating victims of federal officials’ constitutional torts eventually falls.9
6. See id., 137 S. Ct. at 1856 (highlighting the costs to the government of defense and

indemnification of official defendants). Prior to Ziglar, the Court had addressed the
potential for indemnification in the Bivens context, but not necessarily as a reason to
deny access to a Bivens remedy. See infra note 69 and accompanying text.
7. For scholarship on the incentive effects of constitutional tort liability that makes
different assumptions about indemnification practices, compare Daniel J. Meltzer,
Essay, State Sovereign Immunity: Five Authors in Search of a Theory, 75 NOTRE DAME L.
REV. 1011, 1021 (2000) (arguing that indemnity is not necessarily assured), with
Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of Public Officials’
Individual Liability Under Bivens, 88 GEO. L.J. 65, 78 & n.61 (1999) (concluding, on the
basis of an interview with an official in the Department of Justice, an internal
Department of Justice memo, and the content of federal regulations, that officers sued
under Bivens were routinely indemnified both for the cost of legal representation and
for the payment of any final award or settlement), Carlos Manuel Vázquez, Eleventh
Amendment Schizophrenia, 75 NOTRE DAME L. REV. 859, 880-81, 881 n.92 (2000) (noting
that officers are commonly indemnified), and Carlos Manuel Vázquez, What Is Eleventh
Amendment Immunity?, 106 YALE L.J. 1683, 1795-96, 1796 n.464 (1997) (same).
8. Some argue for the assignment of liability to the agency or department. See, e.g., PETER
H. SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS 98-106
(1983) (emphasizing departmental ability to supervise employees so as to reduce the
likelihood of a violation); Catherine Fisk & Erwin Chemerinsky, Civil Rights Without
Remedies: Vicarious Liability Under Title VII, Section 1983, and Title IX, 7 WM. & MARY
BILL RTS. J. 755, 758 (1999) (urging purposive interpretation of all civil rights statutes to
impose vicarious liability on government agencies); Larry Kramer & Alan O. Sykes,
Municipal Liability Under § 1983: A Legal and Economic Analysis, 1987 SUP. CT. REV. 249,
277-80 (articulating a preference for entity liability when the individual tortfeasor
enjoys immunity based on cost-benefit analysis). Some commentators have argued in
favor of an individual liability model for constitutional violations. See, e.g., Oren Gross,
Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 YALE L.J.
1011, 1113 (2003) (defending Bivens’s individual liability model even if indemnification
is likely); Jeffrey Standen, The Exclusionary Rule and Damages: An Economic Comparison
of Private Remedies for Unconstitutional Police Conduct, 2000 BYU L. REV. 1443, 1446, 144951 (positing that damages for Fourth Amendment violations deter at least as effectively
as the exclusionary rule).
9. Each of us has asked and answered adjacent questions. One of us has shown that federal
officials were historically indemnified by the federal government. James E. Pfander &
Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government
Accountability in the Early Republic, 85 N.Y.U. L. REV. 1862, 1904-05 (2010) (finding an
antebellum indemnity rate of roughly 60%). Another of us has shown that state and
local law enforcement officers are virtually always indemnified. Joanna C. Schwartz,
Police Indemnification, 89 N.Y.U. L. REV. 885, 912-13 (2014) (reporting that state and local
governments paid 99.98% of the damages plaintiffs recovered in lawsuits alleging civil
footnote continued on next page

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To answer these important questions, we studied successful lawsuits
brought against the Federal Bureau of Prisons (BOP) and its officers. Invoking
the Freedom of Information Act (FOIA), we sought data on Bivens claims
brought against BOP employees that resulted in payments to plaintiffs. The
BOP produced documents that revealed payments made in connection with
settlements and judgments in some 209 cases that were closed over a ten-year
period from 2007 through 2017—101 cases that alleged claims only under the
Federal Tort Claims Act (FTCA)10 or FOIA,11 and 108 cases that included Bivens
claims. Through independent research, we identified another 63 successful
Bivens cases brought against BOP officials during the relevant time period.12
rights violations by law enforcement). And the third of us has shown that plaintiffs
succeed in Bivens cases far more often than had previously been assumed. Alexander A.
Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the Individual
Liability Model, 62 STAN. L. REV. 809, 839, 841 (2010) (reporting that nonfrivolous Bivens
claims in which an answer or motion is filed succeed at a rate of about 30%, and that
counseled Bivens claims succeed at a rate of about 39%).
10. The FTCA assigns liability to the government for many of the torts its employees
commit in the course and scope of their employment. See 28 U.S.C. § 1346(b)(1) (2018)
(extending federal jurisdiction to, and accepting government responsibility for, “loss of
property, or personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his
office or employment”). Originally enacted to accept federal government liability for
the negligent and wrongful acts of its officers and employees, the FTCA initially
excluded a specified set of intentional torts. See Federal Tort Claims Act, ch. 753, tit. IV,
§ 421(h), 60 Stat. 842, 846 (1946) (codified as amended at 28 U.S.C. § 2680(h)). The statute
was amended in 1974 to accept government responsibility for certain intentional torts
committed by law enforcement officers. See Act of March 16, 1974, Pub. L. No. 93-253,
sec. 2, § 2680(h), 88 Stat. 50, 50 (codified as amended at 28 U.S.C. § 2680(h)) (identifying
“assault, battery, false imprisonment, false arrest, abuse of process, or malicious
prosecution,” where committed by “investigative or law enforcement officers,” as
exceptions to the general rule barring government liability for intentional torts and
defining law enforcement officers as those with power “to execute searches, to seize
evidence, or to make arrests”). For an introduction to the Federal Tort Claims Act, see
GREGORY C. SISK, LITIGATION WITH THE FEDERAL GOVERNMENT 109-96 (2016) (sketching
the origins and current application of the FTCA); James E. Pfander & Neil Aggarwal,
Bivens, the Judgment Bar, and the Perils of Dynamic Textualism, 8 U. ST. THOMAS L.J. 417,
424-27 (2011) (explaining the interplay between personal and government liability
under the FTCA). On the circumstances surrounding the 1974 amendments, see James
E. Pfander & David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional
Adjudication, 98 GEO. L.J. 117, 131-36 (2009) (tracing the impetus for, and practical effect
of, the expansion of liability under the FTCA). On the implications for Bivens, see
Carlson v. Green, 446 U.S. 14, 19-20, 19 n.5 (1980) (concluding that the expansion of the
FTCA in 1974 was meant to supplement, rather than displace, the Bivens remedy).
11. See 5 U.S.C. § 552 (2018). FOIA makes no provision for money suits against the
government, although it does permit individuals in some circumstances to recover
their attorney’s fees. Id. § 552(a)(4)(E).
12. We cannot conclusively determine that we have identified every single successful
Bivens claim brought against BOP officials during this timeframe, but we have
exhaustively canvassed multiple sources. As described in greater detail in Appendix A,
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Our study focuses on the 171 cases with Bivens claims, where personal liability
is assumed. By examining these 171 cases, we were able to determine whether
individual defendants contributed any personal resources in the course of
resolving the claims of misconduct. We were also able to determine the
frequency with which payments were made by the BOP.13 Despite the study’s
limitations, applying as it does only to the practices of a single agency over a
specified period of time, we can draw important, if qualified, conclusions about
who pays when Bivens litigation succeeds.
Among other striking conclusions, the data reveal that individual
government officials almost never contribute any personal funds to resolve
claims arising from allegations that they violated the constitutional rights of
incarcerated people. Indeed, of the 171 successful cases in our dataset asserting
Bivens claims, we found only eight in which the individual officer or an insurer
was required to make a compensating payment to the claimant.14 Of the more
than $18.9 million paid to plaintiffs in these 171 cases, federal employees or
their insurers were required to pay approximately $61,163—0.32% of the
total.15 Echoing the conclusion one of us reached in a study of the way local
governments pay settlements and judgments in § 1983 claims against state and
local law enforcement officers,16 we find that the federal government
effectively held its officers harmless in over 95% of the successful cases brought
against them, and paid well over 99% of the compensation received by
plaintiffs in these cases.
A second important finding emerged from our study. Just as individual
officers were almost invariably shielded from personal liability, we found that
the BOP and its budget were similarly protected from financial responsibility
for constitutional tort claims. The settlement agreements we reviewed made

13.

14.
15.
16.

we conducted an independent review of federal court dockets during the study period
using the Bloomberg Law electronic database and identified sixty-three Bivens cases
filed between 2005 and 2014 which resulted in a settlement and which were not
included in the BOP’s FOIA disclosures. We included those additional cases in our
dataset. The BOP additionally provided information about settlements paid in disputes
that were resolved prelitigation, but after canvassing those settlements, we concluded
none involved Bivens claims.
Although confidential settlement agreements are common in litigation between
private parties, the Department of Justice has adopted a policy against entering into
such agreements in civil litigation. See 28 C.F.R. § 50.23(a) (2019). The BOP made no
assertion that an exception to this policy applied in response to our FOIA requests
under 28 C.F.R. § 50.23(b). Nor did we locate any example of a confidential settlement
agreement involving the BOP in our independent review of civil dockets.
See infra Part II.A.
See infra notes 79-91 and accompanying text (discussing these findings).
See Schwartz, supra note 9, at 912-13 (reporting that state and local governments paid
99.98% of the damages plaintiffs recovered in lawsuits alleging civil rights violations by
law enforcement).

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clear that the government almost always satisfied claims brought under Bivens
by arranging to have the agreed-upon amounts paid through the Judgment
Fund of the United States Treasury,17 rather than by the agency responsible for
the conduct of its employees—in this case, the BOP.
The federal government’s practice of resolving Bivens claims through
payments from the Judgment Fund has several significant implications. First,
the litigation and settlement practices we report here conflict with the
Supreme Court’s assumptions about the ways in which Bivens cases are
resolved—these cases simply do not threaten individual employees with
financial ruin or trigger indemnifying payments from their agencies. In
predicating its refusal to recognize a right to sue under Bivens in part on the
perceived threat of exorbitant personal, agency, or systemic liability, the Ziglar
Court proceeded in error. The Hernandez Court took no steps to correct the
error.18
Second, our findings have important implications for the way the political
branches manage the payment of successful Bivens claims. Under longstanding
Department of Justice regulations, employees sued for job-related conduct
cannot seek indemnifying protection from personal liability until after the
litigation concludes with the entry of an adverse judgment.19 Department of
Justice attorneys often emphasize these limitations in representing to courts
and to opposing counsel that federal officers face a substantial threat of
personal liability in Bivens litigation.20 But our findings indicate that
settlements frequently occur during the pendency of litigation and before
judgment, with the amounts being paid not through agency indemnification
but through the Judgment Fund.21 In some of these cases, Department of
17. See 31 U.S.C. § 1304 (2018) (appropriating money “to pay final judgments, awards,

18.

19.
20.
21.

compromise settlements, and interest and costs specified in the judgments or otherwise
authorized by law”). Established in 1956 to speed and simplify the payment of
judgments against the United States, and extended in 1961 to authorize the payment of
settlements, the Judgment Fund provides for the payment of final judgments under the
FTCA, the Tucker Act, and other federal statutes that provide for the adjudication of
money claims against the United States. See Paul F. Figley, The Judgment Fund: America’s
Deepest Pocket & Its Susceptibility to Executive Branch Misuse, 18 U. PA. J. CONST. L. 145, 147,
158-64 (2015). Figley reports that Congress once required agencies to pay FTCA
judgments from their own appropriations, but later removed that restriction and made
the Judgment Fund available to pay virtually all claims under the FTCA, with no
requirement that agencies reimburse the Fund. See id. at 161-67. We discuss the role of
the Judgment Fund in paying for the settlement of Bivens claims in Part II.C below.
See Hernandez v. Mesa, 140 S. Ct. 735, 742-43 (2020) (following Ziglar in describing the
Bivens action as disfavored, in part due to the perception that Congress should decide
when to impose liability on federal officials).
See infra Part III.C.
See infra Part III.C.
See infra Parts II.B.2-.3.

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Justice attorneys instruct plaintiffs to substitute an FTCA claim for the Bivens
claim in an amended complaint as a condition of settlement; in other cases, the
settlement agreement is framed as a settlement under the Federal Tort Claims
Act although there is no FTCA claim in the case. In cases in which FTCA
claims were formally added and cases simply treated as though brought under
the FTCA, there were often jurisdictional bars to relief; most of the FTCA
claims were added well after the statute of limitations had run and without any
indication that necessary administrative exhaustion procedures had been
followed.22 Such practices appear to run counter to the limits imposed by
Congress on the way agencies exercise their settlement authority.23 While
Congress has authorized settlements under the FTCA, it has never accepted
Judgment Fund liability for Bivens claims or for any agency payments made to
employees to hold them harmless from personal liability.
This Article proceeds in three parts. Part I describes the history and
current framework of Bivens litigation as narrowed by the Court’s recent
decisions in Ziglar v. Abbasi and Hernandez v. Mesa. We focus in particular on
the consequences of the Court’s hostility to money claims, a hostility
apparently driven in part by the perception that such claims threaten wellmeaning government officials with personal liability and their employing
agencies with the burden of indemnification. Part II describes the results of our
study of successful Bivens actions.24 Part II tracks representative cases, showing
how the ultimate resolution of the claims by settlement or judgment
sometimes corresponded with the submission of an amended pleading that
restated the claims in terms of the FTCA, and sometimes resulted in an
agreement for the United States simply to pay for the acts of BOP employees.
Part III explores the implications of our findings in multiple areas. The
data we report challenge conventional understandings of the Bivens regime,
cast doubt on aspects of the Supreme Court’s Bivens jurisprudence, and invite
congressional redesign of rights and remedies moving forward. More research
should explore why the Department of Justice handles Bivens claims against
BOP employees in the manner we have uncovered, how widely that practice
applies to claims against other bureaus in the Department, and who bears the
burden of liability in Bivens litigation against federal officials who work in
other agencies of the government. Recognizing the value of further research
and greater transparency on the part of the federal agencies, we nonetheless
believe that these initial findings suggest that the Supreme Court and Congress
should rethink their approach to Bivens claims. The Court cannot sensibly
22. For further description of these jurisdictional bars, see notes 120-37 below and

accompanying text. See also infra Part III.D.
23. See infra Part III.D.
24. The methodology of the study is detailed in Appendix A.

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predicate its hostility to Bivens cases on a concern with the threat of personal
liability and indemnity. Nor should Congress, assuming it intends to encourage
closer supervision of federal employees through the assignment of liability,
leave federal agencies free to pass along all of the costs associated with agency
misconduct to the general revenues that supply the Judgment Fund.
I.

Constitutional Torts, Personal Liability, and Ziglar

The Supreme Court’s hostility to the personal liability model of
constitutional remediation did not appear overnight. When Bivens was first
announced, it was seen as consistent with contemporaneous approaches to
statutory interpretation in which the Court found causes of action to be
“implied” from federal law.25 Beginning in the 1980s, however, just as the
Court began narrowing its implied-cause-of-action doctrine in the statutory
context, it also began limiting the application of Bivens doctrine. Indeed, over
the past thirty-five years, the Court has expressed hostility to Bivens actions at
every opportunity. The Court’s recent opinion in Ziglar is a product and
reflection of that hostility, even as it could be read to expand the justifications
for questioning the original Bivens Court’s logic. This Part will briefly sketch
the growth of judicial hostility towards any sort of Bivens claim. It then
concludes with a close reading of Ziglar, which invoked the threat of personal
and agency liability in narrowing the right to seek compensation for
constitutional torts.
A. Constitutional Claims and the Bivens Action
In Bivens, the Supreme Court created a federal right to sue individual
officers for constitutional violations.26 Webster Bivens claimed to have been
the victim of an unlawful search of his home and an unlawful strip search of
his person.27 He sued federal drug enforcement agents in federal court, seeking

25. Before Bivens, the Supreme Court had found implied causes of action in numerous

federal statutes. See, e.g., J. I. Case Co. v. Borak, 377 U.S. 426, 430-34 (1964) (finding an
implied cause of action for damages to enforce section 14(a) of the Securities Exchange
Act of 1934), abrogated by Alexander v. Sandoval, 532 U.S. 275 (2001). The Bivens Court
took this accepted model of statutory interpretation and applied it to the Constitution.
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
397 (1971) (citing Borak and noting that “we have here no explicit congressional
declaration” that a remedy should not be available).
26. 403 U.S. 388 (1971). For more on Bivens, see generally James E. Pfander, The Story of
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, in FEDERAL
COURTS STORIES 275 (Vicki C. Jackson & Judith Resnik eds., 2010).
27. Bivens, 403 U.S. at 389.

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damages under the Fourth Amendment.28 The district court ultimately
dismissed in part on jurisdictional grounds, finding that the claim arose under
state trespass law and that Bivens should have filed suit in state court.29 The
Supreme Court disagreed, concluding that the Fourth Amendment gave rise to
an implied federal right of action for damages.30 The Court’s key move was not
its recognition of a right to sue for damages payable by officers in their
personal capacity or its opening of the federal courts to such litigation—state
law provided such a right, and those common law tort claims, even if filed in
state court, were often litigated in federal court after removal.31 Rather, the
key was the Court’s recognition that federal officers could be sued under
federal law for constitutional violations.32
For the next decade, the Supreme Court and lower courts read Bivens
broadly as creating a general claim for damages caused by constitutional
violations, akin to § 1983 claims against state and local government officials.33
28. Although Mr. Bivens’s pro se complaint did not specifically invoke the Fourth

29.

30.
31.

32.

33.

Amendment, see Pfander, supra note 26, at 280-81, the Court located the source of his
claims there, see Bivens, 403 U.S. at 389.
See Pfander, supra note 26, at 282-83 (recounting the district court’s disposition); see also
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 409 F.2d 718, 721
(2d Cir. 1969), rev’d, 403 U.S. 388.
See Bivens, 403 U.S. at 395-97.
On the creation of a broad federal officer removal provision in 1948, see RICHARD H.
FALLON JR. ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 426 (7th ed. 2015). The Department of Justice’s practice in relation to individual
liability claims may have taken shape in the early years of the FTCA, when the statute
accepted government responsibility only for claims sounding in negligence. In such a
world, the Department of Justice would understandably disclaim government liability
for intentional tort claims, much the way an insurance company might disclaim
matters that fell outside the scope of coverage. Individual officials were on their own as
to such intentional tort claims; indeed, the claims Webster Bivens filed against federal
drug enforcement agents were ultimately settled on remand when the defendants
wrote Mr. Bivens personal checks. The threat of such personal, common-law-tortbased liability ended in 1988, when Congress immunized federal employees and
provided for such suits to go forward, if at all, against the government under the
FTCA. See Pfander & Baltmanis, supra note 10, at 133-34 (describing the adoption and
operation of immunity under the 1988 Westfall Act).
See Bivens, 403 U.S. at 397. The Court was careful to distinguish the functions performed
and interests protected by the common law suit for tort damages from those central to
a claim to vindicate constitutional rights under the Fourth Amendment. See id. at 39394 (describing it as “clear beyond peradventure that the Fourth Amendment is not tied
to the niceties of local trespass laws”).
On the use of § 1983 as a vehicle for the assertion of constitutional tort claims against
state actors, see Monroe v. Pape, 365 U.S. 167, 169, 183-87, 192 (1961) (allowing suit to
proceed against city police officers, without exhaustion of state remedies, for violation
of federal constitutional rights), overruled in part by Monell v. Dep’t of Soc. Servs., 436
U.S. 658 (1978). Since Monroe, § 1983 has served as the statutory predicate for much
constitutional litigation against state and local government officials. See JOHN C.
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The Supreme Court extended Bivens from the Fourth Amendment to sex
discrimination claims under the Fifth Amendment, and to claims brought
against prison officials under the Eighth Amendment.34 During this time,
lower courts often assumed that Bivens extended liability against federal
officials that was as broad as the liability created by statute in § 1983.35 At the
same time, the Court described Bivens as establishing that “the victims of a
constitutional violation by a federal agent have a right to recover damages
against the official in federal court despite the absence of any statute conferring
such a right.”36
B. Suits for Damages Under the Federal Tort Claims Act
While courts were reading Bivens broadly to authorize constitutional tort
claims against federal officials, Congress was moving to assume responsibility
for some common law torts committed by those same officials. Congress took
its first such steps well before Bivens, enacting the FTCA in 1946.37 Under the
FTCA, the United States agreed to waive sovereign immunity and accept
vicarious liability for the torts, as defined in state tort law, that its officers
committed within the scope of their employment.38 Primarily aimed at official

34.

35.
36.
37.
38.

JEFFRIES, JR. ET AL., CIVIL RIGHTS ACTIONS: ENFORCING THE CONSTITUTION 16-17 (4th ed.
2018) (tracing the arc of § 1983 litigation after Monroe). The Court later limited an
officer’s personal liability by installing a qualified immunity defense applicable to
constitutional tort claims against state actors (and federal officials sued on a Bivens
theory). See Harlow v. Fitzgerald, 457 U.S. 800, 809, 813, 818 (1982). While the federal
Judgment Fund has no application to § 1983 liability, state and local governments
typically use government funds to indemnify § 1983 defendants, holding them
harmless from any personal liability. See Schwartz, supra note 9, at 887 n.1, 890
(analyzing personal liability in suits brought against police officers). In the end, then,
government entities typically bear the financial burden associated with the imposition
of constitutional tort liability under § 1983.
See Carlson v. Green, 446 U.S. 14, 17-18 (1980) (recognizing a Bivens claim for an Eighth
Amendment violation); Davis v. Passman, 442 U.S. 228, 234-35, 243-49 (1979) (same
for Fifth Amendment Due Process Clause violations stemming from employment
discrimination). For a discussion of the expansion of Bivens remedies, see Alexander A.
Reinert & Lumen N. Mulligan, Asking the First Question: Reframing Bivens After
Minneci, 90 WASH. U. L. REV. 1473, 1484-85 (2013).
For a discussion of the pre-1980 treatment of Bivens in lower courts, see Reinert, supra
note 9, at 821-22 & nn.54-57.
Carlson, 446 U.S. at 18.
For an introduction to the Federal Tort Claims Act, ch. 753, tit. IV, 60 Stat. 842 (1946)
(codified as amended in scattered sections of 28 U.S.C), see SISK, supra note 10, at 109-96.
See 28 U.S.C. § 2674 (2018) (declaring that “[t]he United States shall be liable . . . in the
same manner and to the same extent as a private individual under like circumstances,
but is not liable for interest prior to judgment or for punitive damages”); see also id.
§ 1346(b) (providing federal courts with jurisdiction over such claims, but calling for
the application of the law of the state “where the act or omission occurred”). Congress
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negligence, the FTCA originally included express language declaring the
statute inapplicable to a long list of intentional torts.39 For these excluded
intentional torts, individuals were left to whatever relief they might obtain by
suing responsible officers in their personal capacity under state law or, after
constitutional tort liability was recognized, by invoking Bivens. By the 1960s,
successful FTCA claims were routinely payable by the federal government,
through the Judgment Fund.40 But personal capacity claims were payable by
the individual, subject to the possibility that the employing agency might
indemnify officers held personally liable for action taken in the line of duty.41
In 1974, Congress broadened the FTCA by accepting vicarious liability for
an array of common law intentional torts, liability that overlapped to some
degree with the Bivens remedy the Court had announced three years earlier.
Concerned about a series of no-knock federal drug enforcement raids,
Congress amended the FTCA to cover specified intentional torts committed by
“investigative” and “law enforcement” officials.42 Such intentional tort claims
were to be predicated upon the rules of common law liability in the state
where the injury occurred. Congress did not, however, accept governmental
liability for Bivens claims, leaving the individual liability model in place for
constitutional torts.43 The availability of these overlapping remedies created

39.

40.

41.
42.
43.

has also permitted similar suits to be brought in the United States Court of Federal
Claims when the subject matter is contract rather than tort. See 28 U.S.C. § 1491(a)(1)
(conferring jurisdiction on the Court of Federal Claims to hear any claim against the
United States founded on the Constitution, any federal statute or regulation, or any
express or implied contract with the United States). For an account, see SISK, supra
note 10, at 240-41.
See Federal Tort Claims Act § 421(h), 60 Stat. at 846 (codified as amended at 28 U.S.C.
§ 2680(h)) (declaring the FTCA inapplicable to claims arising out of “assault, battery,
false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights”).
On the origin and operation of the Judgment Fund, see supra note 17. For the Supreme
Court’s acceptance of a compensation model that then imposed some limits (later
removed) on the amount of the routine Judgment Fund payments, see Glidden Co. v.
Zdanok, 370 U.S. 530, 570-71 (1962) (plurality opinion) (upholding federal judicial
power to adjudicate subject to the Judgment Fund compensation scheme, which at the
time provided for routine payment of judgments up to only $100,000, against the
argument that it did not ensure full payment with the certainty required by the finality
requirements of Article III). Congress eliminated the cap on Judgment Fund payments
in 1978 and now allows routine payment of judgments in any amount. See Figley, supra
note 17, at 162-64.
For the rules governing indemnification in the Department of Justice, see notes 187-88
below and accompanying text.
See Act of March 16, 1974, Pub. L. No. 93-253, sec. 2, § 2680(h), 88 Stat. 50, 50 (codified as
amended at 28 U.S.C. § 2680(h)). For an account, see SISK, supra note 10, at 170-72.
See Carlson v. Green, 446 U.S. 14, 19-20, 19 n.5 (1980) (concluding that the expansion of
the FTCA in 1974 was meant to supplement, rather than displace, the Bivens remedy).

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the possibility that an injured individual might sue both the responsible officer
under Bivens and the government under the FTCA for the same tortious
misconduct.44
The existence of parallel and to some degree overlapping remedies for
intentional and constitutional torts has presented puzzles of coordination.45
Indeed, the government argued in Carlson v. Green that the existence of
intentional tort remedies under the FTCA displaced the officers’ personal
Bivens liability for the same misconduct.46 The case arose from the actions of
officers at a federal prison in Indiana, who were said to have failed to provide
appropriate medical treatment for Marie Green’s imprisoned son.47 Basing her
claim on the Eighth Amendment, Green sought damages from those
responsible for her son’s death, a claim comparable to one she might have
pursued under the FTCA against the government itself.48 The Court identified
several reasons why the Bivens remedy survived the government’s acceptance
of liability for parallel common law torts: Congress had written the FTCA to
supplement rather than displace Bivens; it was important to preserve the
liability of officials so as to deter them from engaging in unconstitutional
activity; the Bivens remedy (unlike the FTCA) afforded an opportunity to
secure punitive damages; and, unlike the FTCA claim, the Bivens action was
triable to a jury.49 The Carlson Court thus reaffirmed personal liability as a
defining feature of the Bivens action and maintained that constitutional tort
claims made an important and distinctive contribution to the remedial scheme
and did not merely duplicate common law tort-based liability.50
44. Courts typically allowed claimants to secure but a single compensatory award for any

45.

46.
47.
48.
49.
50.

such invasion, thereby preventing double recoveries. See Pfander & Aggarwal, supra
note 10, at 418-20 (examining how courts coordinate remedies and prevent double
recoveries).
One much debated tool of coordination, the FTCA’s judgment bar, was sometimes
broadly applied to block any Bivens action that arose from the same subject matter as an
FTCA claim that had been previously dismissed. See, e.g., Manning v. United States, 546
F.3d 430, 437-38 (7th Cir. 2006) (invoking the judgment bar to invalidate a jury verdict on
a Bivens claim after concluding in a bench trial that the government had
no liability under the FTCA for the FBI conduct in question). But see Simmons v.
Himmelreich, 136 S. Ct. 1843, 1850 (2016) (holding that FTCA dismissals on the basis that
claims fall within exceptions to government liability do not trigger the judgment bar).
See Carlson, 446 U.S. at 19-20 (rejecting these arguments regarding the FTCA).
Id. at 16 & n.1.
See id. As a general matter, the FTCA incorporates state law as the measure of
compensatory damages in wrongful death cases. See 28 U.S.C. § 2674 (2018).
See Carlson, 446 U.S. at 20-22.
See id. at 20; see also Pfander & Aggarwal, supra note 10, at 422. Several other features
distinguish the FTCA remedy from that available through a Bivens action. For starters,
claimants pursuing remedies under the FTCA must provide a notice of claim to the
government, identifying the nature of the claim and initiating an administrative
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Eight years later, in the Westfall Act of 1988, Congress made one
important change in the scheme of available remedies but otherwise largely
ratified the system that was in place. Responding to a decision by the Supreme
Court, Congress immunized federal officers from liability for all claims based
on state law, thereby displacing common law tort actions brought directly
against individual officers for conduct in the line of duty.51 Congress preserved
the government’s liability at common law under the FTCA and the prospect of
a Bivens action. Indeed, Congress created an explicit exception to the rule of
personal immunity for suits alleging violations of the Constitution (or a
federal statute), thereby preserving the Bivens action against individual
officials.52 Today, one can sue the government under the FTCA for the
(statutorily specified) intentional torts of its law enforcement officers and sue
federal officers themselves under Bivens for their constitutional torts.53
C. Personal Liability and the Decline of the Bivens Action
Since Carlson, the Court has turned away Bivens claims for a variety of
reasons, more and less openly articulated. Many factors seem central to this
trend, among them a changing conception of the role of federal courts in
recognizing judge-made rights to sue; a reluctance to recognize a Bivens action
in a setting where the litigant has other available remedies; and a refusal to
constitutionalize and oversee special relationships (such as those between
superior and subordinate members of the military).54 For the purposes of this
Article, however, the Court’s growing concern with personal liability is most
relevant. Worrying about the threat of overdeterrence and questioning how
important money claims and retrospective relief are to a healthy system of
constitutional law, a majority of the Court has come to view the Bivens action
with skepticism.55

51.

52.
53.

54.
55.

process that serves as a prelude to litigation. Claimants who fail to provide timely
notices may be barred from recovery. For further discussion of these requirements, see
notes 205-06 below and accompanying text.
For the terms of Westfall Act immunity, see 28 U.S.C. § 2679(b)(2). These common law
actions had been a feature of American jurisprudence since the early nineteenth
century. See JAMES E. PFANDER, CONSTITUTIONAL TORTS AND THE WAR ON TERROR 3-17
(2017) (tracing early decisions that held federal officers personally accountable for onthe-job torts, subject to the prospect of congressional indemnification).
See 28 U.S.C. § 2679(b). For an account, see Pfander & Baltmanis, supra note 10, at 136-38.
Note, however, that recent developments suggest Bivens furnishes a right of action
only for a narrow range of constitutional torts. See Ziglar v. Abbasi, 137 S. Ct. 1843,
1855-60 (2017) (applying special factors analysis to reject recognition of claims in a new
context, as is more fully discussed in notes 244-45 below and accompanying text).
See infra notes 56-62 (collecting cases).
See Hernandez v. Mesa, 140 S. Ct. 735, 741-43 (2020); Ziglar, 137 S. Ct. at 1856-57.

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Familiar cases illustrate these changes in the Court’s view of the doctrine
and together they convey the impression that Bivens skepticism has fed upon
itself and gained momentum with each claim the Court has rejected. In a series
of decisions spanning the early 1980s to the early 1990s, the Court sometimes
emphasized the availability of congressionally approved alternatives that could
provide remedies similar to those contemplated by Bivens.56 At other times, it
appeared more concerned with the separation of powers implications of the
judicial creation of a cause of action in areas uniquely committed to a
coordinate branch.57 Read on its own terms, each of these decisions tends to
confirm the viability of the Bivens doctrine but finds it inapplicable to the case
at hand.
Recent decisions take a more critical view. Lately, the Court has tended to
emphasize its reluctance to fashion implied rights of action, noting that the
statutory implied right of action framework on which the Bivens Court relied
in part has been disbanded.58 Consider how far the Court has come since
Wilkie v. Robbins, which treated the implied right of action analysis as one that
lay squarely within the competence of judges making what was essentially a
common law decision.59 Although Wilkie declined to recognize a Bivens claim
in the specific context of retaliatory takings, it did not denigrate the enterprise
of weighing factors relevant to the wisdom of allowing the suit to proceed.
More recently, the Court has been openly skeptical of such analyses, viewing
the recognition of implied rights to sue as a “disfavored” judicial activity.60 At
the same time, the Court has described its past decisions in broader terms.
Thus, the Court has restated some fact-bound decisions as reflecting a broader
56. See Schweiker v. Chilicky, 487 U.S. 412, 424-26 (1988) (emphasizing the adequacy of

57.

58.

59.
60.

existing remedies for the denial of Social Security benefits in a procedural due process
case); Bush v. Lucas, 462 U.S. 367, 368, 390 (1983) (treating comprehensive civil service
remedies as meaningful and as sufficient to displace any need for a Bivens action in the
First Amendment context). Notwithstanding the Court’s emphasis on the availability
of constitutionally created alternative remedies, Carlson’s holding that the FTCA does
not displace Bivens actions remains intact. See Ziglar, 137 S. Ct. at 1864-65
(distinguishing Carlson but treating it as authoritative).
See Chappell v. Wallace, 462 U.S. 296, 304 (1983) (finding that a Bivens remedy was not
available for racial discrimination claims brought by enlisted military personnel
against superior officers in the military).
Compare Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388, 402-03, 402 n.4 (1971) (Harlan, J., concurring in the judgment) (invoking the
implied right of action doctrine relied upon in J. I. Case Co. v. Borak, 377 U.S. 426 (1964)),
with Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring) (noting
that the Court had abandoned the implied right of action doctrine in Alexander v.
Sandoval, 532 U.S. 275 (2001)).
See 551 U.S. 537, 554 (2007) (describing the task at hand as “weighing reasons for and against
the creation of a new cause of action, the way common law judges have always done”).
See Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009).

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reluctance to extend Bivens liability “to any new context or new category of
defendants.”61
One constant in the Court’s narrowing of Bivens litigation has been its
concern with the threat of personal liability. That unease first surfaced in
decisions that created a doctrine of qualified immunity from suit for executive
officers doctrine at the same time that the Court took steps away from
expansive Bivens liability. One can see this in the Court’s 1982 decision in
Harlow v. Fitzgerald, which altered qualified immunity in large part because of
the Court’s judgment that Bivens claims “frequently run against the innocent as
well as the guilty—at a cost not only to the defendant officials, but to society as
a whole.”62
The perceived threat of personal liability also came to shape a more
general judicial hostility to Bivens claims. One finds the concern expressed in
Bush and Schweiker, decisions that rejected Bivens claims where other remedies
were deemed adequate.63 In Bush, the Court declined to recognize a right for
federal employees to sue their employers for First Amendment violations,
observing: “[I]t is quite probable that if management personnel face the added
risk of personal liability for decisions that they believe to be a correct response
to improper criticism of the agency, they would be deterred from imposing
discipline in future cases.”64
In Schweiker, the Court similarly found that plaintiffs could not bring a
damages action for a due process violation against federal agency administrators
for fear that “[t]he prospect of personal liability for official acts . . . would
undoubtedly lead to new difficulties and expense in recruiting administrators
for the programs Congress has established.”65 The Court expressed similar
concerns in Chappell and Wilkie.66
61. Corr. Servs. Corp., 534 U.S. at 68 (majority opinion) (describing Bush and Schweiker in this

manner, despite their reliance on assessments of the adequacy of alternative remedies).
62. 457 U.S. 800, 814 (1982). Similar concerns with protecting officials from personal

63.
64.
65.
66.

liability inform later qualified immunity decisions, including those that establish an
objective standard for the evaluation of official immunity defenses and those that
apply that standard in ever-more restrictive ways. See, e.g., Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011) (finding qualified immunity unless “existing precedent . . . placed the
statutory or constitutional question beyond debate”).
Schweiker v. Chilicky, 487 U.S. 412, 425 (1988); Bush v. Lucas, 462 U.S. 367, 389-90
(1983) (referring to overdeterrence from the “added risk of personal liability”).
Bush, 462 U.S. at 389.
Schweiker, 487 U.S. at 425.
See Wilkie v. Robbins, 551 U.S. 537, 562 (2007) (expressing fear that if a Bivens action is
recognized, it will lead to a “tide of suits threatening legitimate initiative on the part
of the Government’s employees”); Chappell v. Wallace, 462 U.S. 296, 304 (1983) (describing
how the “special nature of military life . . . would be undermined by a judicially created
remedy exposing officers to personal liability at the hands of those they are charged to
command”).

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The Court’s recent decision in Ziglar v. Abbasi again highlighted the threat
of personal liability as a reason to proceed cautiously before recognizing a
claim in a new Bivens context.67 The Court in Ziglar feared that “[i]f Bivens
liability were to be imposed, high officers who face personal liability for
damages might refrain from taking urgent and lawful action in a time of
crisis.”68 At the same time, the Ziglar Court introduced a new concern: that
Bivens actions may ultimately impose financial liability on government bodies
that represent and indemnify their employees.69 The Court referred vaguely to
“economic and governmental concerns” raised by these costs, concluding that
Congress is the proper decisionmaker for whether “monetary and other
liabilities should be imposed upon individual officers and employees of the
Federal Government.”70 The Ziglar Court finally combined these two issues—
the threat of “personal liability” and the “projected costs and consequences to
the Government itself”—to locate “systemwide” reasons to limit Bivens
expansion.71
To summarize, then, the Ziglar majority invoked the threat of personal
liability to make two kinds of arguments against the availability of a Bivens
remedy. First, the Court returned to its oft-stated worry that individual
liability might overdeter government officials and prevent them from taking
appropriate action to meet an urgent crisis. Such an argument rests, at bottom,
67. Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017).
68. Id. at 1863.
69. The Court has addressed the potential for indemnification in the Bivens context before,

but not necessarily as a reason to deny access to a Bivens remedy. In FDIC v. Meyer, for
example, the Court acknowledged that the federal government might indemnify
individuals in Bivens cases, but made no assumptions about how that might impact the
federal fisc. 510 U.S. 471, 486 (1994). And in Cleavinger v. Saxner, the Court declined to
provide absolute immunity to members of a federal prison’s disciplinary committee sued
under Bivens, recognizing that if a “flood of litigation” burdened these individuals, the
government could always decide to provide indemnification. 474 U.S. 193, 207-08 (1985).
70. Ziglar, 137 S. Ct. at 1856. This represents an important shift from Bush, where the
Court’s decision to defer to Congress was driven not by a threat of personal liability
alone but by the proposed addition of personal liability to a legislative scheme that
already supplied money remedies for federal whistleblowers. See Bush v. Lucas, 462 U.S.
367, 368, 385 (1983) (describing the applicable statute as providing “meaningful
remedies” against the United States for the constitutional claim in question).
71. See Ziglar, 137 S. Ct. at 1858. The Court in Hernandez v. Mesa reemphasized the concern
with preserving congressional primacy in deciding when to subject government
officials to personal liability. See 140 S. Ct. 735, 742 (citing Ziglar, 137 S. Ct. at 1856).
More significantly, a clear majority expressed serious doubts about the legitimacy of
judge-made rights to sue. See id. at 742 (emphasizing that a damages remedy must rest
on a statute and that no statute authorizes a Bivens action); id. at 752 (Thomas, J.,
concurring) (characterizing the recognition of Bivens actions as a “usurpation of
the legislative power” and calling on the Court to overturn the doctrine (quoting
Gamble v. United States, 139 S. Ct. 1960, 1984 (2019) (Thomas, J., concurring))).

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on the perception that the liability imposed under the Bivens doctrine
ultimately falls on the officers themselves with sufficient regularity to shape
their behavior. Second, the Court appeared to recognize the possibility that
Bivens liability may occasion the payment of indemnity by the affected agency
or the federal government as a whole. The Court pointed to both possibilities
as reason to limit the right to sue until Congress acts. In adopting this either-or
approach, the Court implicitly acknowledged that it does not know where the
burdens of liability lie in Bivens cases.72
Despite the Court’s apparent agnosticism on this point, we share the
scholarly consensus that where liability ultimately falls matters a great deal to
the systemic effectiveness of constitutional remedies.73 The strength and
nature of an award’s deterrent effect will depend in good measure on whether
an individual officer, a federal agency, or the U.S. government as a whole will
satisfy damages awards in Bivens actions. The incidence of liability also bears
on the question of how seriously one should view the harms supposedly
associated with expansive conceptions of Bivens liability. By learning who pays
a viable Bivens claim, we can evaluate whether the Court’s hostility to money
claims is warranted, and whether the liability rule properly shapes the
incentives of government agencies and officials.
II. Bivens in Practice: A Study of Who Pays to Resolve
Well-Grounded Constitutional Tort Claims
We know what the applicable statutes and regulations say about where
liability falls. Claims brought under the FTCA are supposed to be paid from
the U.S. Treasury’s Judgment Fund.74 Bivens claims run against the individual
government official named as a defendant.75 Although that official can seek
indemnification from their employer, in the absence of exceptional
circumstances they can only do so after a judgment has been reached in the
72. Other considerations doubtless informed the Ziglar Court’s parsimonious view of the

availability of Bivens remedies. For starters, the Court expressed suspicion of litigation
that seeks to resolve broad policy issues in the context of suits to impose damages
liability. See id. at 1860-61 (explaining that Bivens litigation does not provide an
appropriate vehicle for testing the constitutionality of government policy decisions).
See generally James E. Pfander, Dicey’s Nightmare: An Essay on the Rule of Law, 107 CALIF.
L. REV. 737, 781-83 (2019) (describing the Court’s preference for injunctive-style
declaratory approaches to constitutional adjudication). Moreover, the Court’s emphasis
on the importance of statutory rights of action has led it to question the legitimacy of
the Bivens remedy. See Ziglar, 137 S. Ct. at 1855 (recounting the Court’s growing
reluctance to recognize implied rights of action).
73. See supra notes 7-8.
74. See supra notes 17, 40 and accompanying text.
75. See supra notes 33-36, 41 and accompanying text.

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case.76 And Department of Justice officials have made very clear in filings and
representations to courts at all levels that indemnification is far from
certain.77 Based on the applicable statutes and rules, one would assume that
the Treasury’s Judgment Fund is used to satisfy successful FTCA claims,
federal agencies satisfy successful Bivens claims if they agree to indemnify
their employees, and individual officers pay when successful Bivens claims are
settled before trial and when agencies refuse to indemnify. Yet no data exist
to test these three assumptions. In short, we know little about who actually
pays when Bivens claims succeed.
In order to answer these pressing questions about the realities of Bivens
litigation, we submitted a FOIA request to the BOP, seeking the litigation
records from successful claims, including information about the amount paid
in each successful case and about which entity or person made the payments
in question.78 The BOP responded with the litigation records of cases closed
over a ten-year period from 2007 to 2017. Through independent research, we
uncovered information about sixty-three additional cases not initially
produced by the BOP.79 We then submitted to the BOP requests for
additional information about these cases.
From our research, and the BOP’s responses, we have constructed a
dataset of 171 cases in which the plaintiffs presented a Bivens claim at some
point during the course of litigation and secured a settlement or payment
after judgment. In only 8 of the 171 cases (less than 5%), BOP employees and
their insurers paid a share of the settlement amount.80 That share amounted
to just 0.32% of the more than $18.9 million paid to plaintiffs to resolve these
171 claims. Furthermore, we found no case in which the BOP itself appears to
have contributed agency funds to plaintiffs’ settlements in successful Bivens
claims. Instead, government attorneys arranged to have these matters
resolved with payments from the Judgment Fund, which is funded by the
Treasury of the United States.
In this Part, we discuss what our data reveal about the manner in which
these cases were resolved. We begin with a sketch of the handful of claims in
which the employees contributed personal or insurance funds to the
settlement pot. We next examine the vast majority of cases (more than 95%)
See infra notes 187-90 and accompanying text.
See infra Part III.C.
Our methodology is set out in more detail in Appendix A.
As described in Appendix A, we utilized the Bloomberg Law search engine to canvass
federal court dockets using search terms likely to uncover settlements involving the
BOP and its employees. See also supra note 12 and accompanying text.
80. For a description of these eight cases and the amount paid, see Part II.A below. See also
infra Appendix B, Table 1.
76.
77.
78.
79.

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in which the officials named as defendants made no contribution to the
payment of settlements and judgments. We focus particularly on the various
ways in which claims evolved over the course of their litigation lifespan
from suits seeking to impose personal liability on federal employees to suits
that were ultimately resolved with compensating payments from the
Treasury.
A. Cases in Which Employees Contributed to the Payment of
Settlements and Judgments
Individual officers were required to contribute to the resolution of 8 of
171 Bivens cases in our dataset.81 Three of the eight cases involved claims
alleging sexual assault by BOP employees.82 In another three of the eight
cases, plaintiffs sued BOP employees for improper medical care.83 In one
case, the plaintiff accused the defendant officer of putting thorns on a bench

81. See infra Appendix B, Table 1.
82. The first of the three cases is Doe v. United States, settling for $70,500 with the officer—

who was in prison—paying $3000. Stipulation for Compromise Settlement & Release of
Federal Tort Claims Act Claims Pursuant to 28 U.S.C. § 2677, at 2, Doe v. United States,
No. 1:08-cv-00517 (D. Haw. Dec. 30, 2013); Order Granting Defendant Markell Milsap’s
Motion for Approval of Good Faith Settlement at 1-2, Doe, No. 1:08-cv-00517 (D. Haw.
Dec. 18, 2009), ECF No. 46. The second case is Doe v. United States, settling for $40,000,
with $25,000 paid by the officer. Stipulation for Compromise Settlement & Release of
Federal Tort Claims Act Claims Pursuant to 28 U.S.C. § 2677, at 2, Doe v. United States,
No. 1:12-cv-00640 (D. Haw. Apr. 28, 2015); Complaint for Damages at 4, Doe, No. 1:12cv-00640 (D. Haw. Nov. 29, 2012), ECF No. 1. The third case is Harrison v. Jackson,
settling for $11,000 and paid by the officer. Joint Motion for Entry of Consent
Judgment Against Defendant Lewis Jackson Exhibit 1, at 3, Harrison v. Jackson, No. 1:12cv-04459 (N.D. Ga. Mar. 4, 2016), ECF No. 121; Complaint at 6-7, Harrison, No. 1:12-cv04459 (N.D. Ga. Dec. 27, 2012), ECF No. 1.
83. The first of the three cases is Ortiz v. Bezy, settling for $10,000 paid either by the
defendant doctor or his insurer. Motion for Time to File Stipulation of Dismissal at 2,
Ortiz v. Bezy, No. 2:05-cv-00246 (S.D. Ind. June 27, 2013), ECF No. 219; Civil Rights
Complaint at 2, Bezy, No. 2:05-cv-00246 (S.D. Ind. Oct. 5, 2005), ECF No. 1. The second
case is Bolden v. Marberry with a confidential settlement paid by the defendant officer.
Complaint for Injunctive & Declaratory Relief & Damages from Violations of
Constitutional Rights at 2, Bolden v. Marberry, No. 2:09-cv-00312 (S.D. Ind. Sept. 25,
2009), ECF No. 1; Email from C. Darnell Stroble, Assistant Gen. Counsel/FOIA Pub.
Liaison, Fed. Bureau of Prisons, to Joanna C. Schwartz, Professor of Law, UCLA Sch. of
Law (Mar. 28, 2019, 5:27 AM) (on file with authors) (explaining that the settlement
amount in Marberry was confidential). The third case is Jones v. Caraway, settling for
$662.95 and paid by the officer. Settlement Agreement & Release at 1-2, Jones v.
Caraway, No. 2:14-cv-00319 (S.D. Ind. Jan. 18, 2017); Complaint at 3, Caraway, No. 2:14cv-00319 (S.D. Ind. Oct. 24, 2014), ECF No. 1.

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where he sat, injuring him.84 And in one case, the plaintiff sued three
defendant officers for physical assault.85
We have information about the amounts officers were required to pay in
seven of the eight cases. In those seven cases, eight officers were obligated to
pay a total of $61,163. The average required contribution for those eight
officers was $7645, and their median required contribution was $5000. It bears
noting that three of the eight officers paid only a portion of the settlement
awards, with the government contributing the remainder from the Judgment
Fund.86 Another three of the eight BOP employees were financially shielded in
other ways: One was a doctor whose settlement was likely paid by an insurer,
effectively holding the individual employee harmless from any personal
liability; the other two BOP employees never paid the $5000 each agreed to pay
through a Rule 68 judgment.87 Just two BOP employees paid the entirety of the
settlement awards resulting from their misconduct: One settlement for $11,000
was paid by a doctor accused by the plaintiff of repeated sexual assaults;88 the
other settlement for $663 was paid by an officer alleged to have assigned the
plaintiff to a top bunk despite knowing he suffered from seizures.89
One can understand why the conduct alleged in these eight cases, if
proven, might give rise to successful constitutional tort claims. But when we
84. Amended Complaint at 2, Shirley v. Manning, No. 3:13-cv-00236 (D. Or. Nov. 4, 2013),

85.

86.
87.

88.

89.

ECF No. 17 (describing plaintiff’s allegations); U.S. Fed. Bureau of Prisons, Case Details:
Shirley v. Manning et al (2016) (on file with authors) (showing a settlement for $7500,
with the officer paying $1500).
Complaint at 4, Monclova-Chavez v. McEachern, No. 1:08-cv-00076 (E.D. Cal. Jan. 15,
2008), ECF No. 1; Email from Elizabeth Alexander, Attorney, to Joanna C. Schwartz,
Professor of Law, UCLA Sch. of Law (Dec. 23, 2018, 4:25 PM) (on file with authors)
(noting the acceptance of a Rule 68 award by two of the officers in Monclova-Chavez for
$10,000 but also noting that the officers never satisfied the judgment, meaning the
plaintiff ultimately received nothing).
See infra Appendix B, Table 1.
See Motion for Time to File Stipulation of Dismissal at 2, Ortiz, No. 2:05-cv-00246 (S.D.
Ind. June 27, 2013), ECF No. 219; Email from Elizabeth Alexander to Joanna C.
Schwartz, supra note 85 (describing the outcome in Monclova-Chavez); see also infra
Appendix B, Table 1. The records do not reflect whether other officers had professional
liability insurance that they used to satisfy their settlement obligations. We are aware
that insurance companies market liability insurance to federal employees. See, e.g., STARR
WRIGHT USA, https://perma.cc/GA4M-5C7T (archived Jan. 22, 2020). Further research
should explore the frequency with which federal officers purchase such insurance, and
the frequency with which insurers satisfy federal officers’ legal liabilities.
See Consent Judgment Against Defendant at 3, Harrison v. Jackson, No. 1:12-cv-04459
(N.D. Ga. Mar. 8, 2016), ECF No. 122; Complaint at 6, Harrison, No. 1:12-cv-04459 (N.D.
Ga. Dec. 27, 2012), ECF No. 1.
See Settlement Agreement & Release at 1-2, Jones v. Caraway, No. 2:14-cv-00319 (S.D.
Ind. Jan. 18, 2017) (on file with authors); Complaint at 3, Caraway, No. 2:14-cv-00319
(S.D. Ind. Oct. 24, 2014), ECF No. 1.

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compare these eight cases to the great mass of cases in which the individuals
made no contribution to the settlements, it is unclear why BOP employees
were required to contribute to the resolution of these cases and not others. It
may be that BOP employees are more likely to be required to contribute to
certain types of cases: Three of the eight cases involved sexual assault.90 It may
also be that there is some regional variation in U.S. Attorneys’ or BOP
attorneys’ demands that employees contribute: Three of the eight cases in
which officers were required to contribute were filed in the Southern District
of Indiana, and two were filed in the District of Hawaii. But there are other
cases of sexual assault, and other cases brought in the Southern District of
Indiana and the District of Hawaii, in which the involved officers were
shielded from financial liability.91 And, as the examples in the next Subpart
suggest, one cannot confidently say that the official misconduct in these eight
90. This hypothesis is consistent with plaintiffs’ attorneys’ anecdotal evidence—attorneys

with whom we spoke report that individual officers are very rarely held personally
liable in these cases, and the only exceptions to this rule were in cases of sexual assault
by officers. As one attorney told us,
In my experience—many cases over more than 40 years—I have never heard of an individual
federal employee having to contribute to tort settlements or judgments paid by the
government, and that includes medical malpractice cases, rapes and sexual assaults in prisons,
wrongful deaths, etc. I have participated in two cases in which male prison guards were
named individually in cases in which they and a federal correctional institution were both
sued for an alleged sexual relationship involving a female inmate, and the individuals settled
separately from the government, but those are the only occasions of which I am aware that an
employee/actor contributed monetarily to a settlement or judgment in a federal tort claim
matter.

Email from Eric Seitz, Attorney, to Joanna C. Schwartz, Professor of Law, UCLA Sch.
of Law (Oct. 25, 2017, 1:57 PM). Note that Seitz was an attorney for the plaintiffs in
both Doe v. United States, No. 12-cv-0640 (D. Haw.), and Doe v. United States, No. 1:08-cv00517 (D. Haw.)—two of the three sexual assault cases in which individual officers
contributed to the settlements.
91. Officers did not contribute to settlements in two other Bivens actions in the dataset
involving sexual assault and rape by the officers—Zepeda v. United States and Houston v.
United States. For information about Zepeda, see Stipulation for Compromise Settlement
& Release at 2, Zepeda v. United States, No. 1:06-cv-00676 (D. Haw. Apr. 10, 2008); and
Complaint at 3, Zepeda, No. 1:06-cv-00676 (D. Haw. Dec. 27, 2006), ECF No. 1. For
information about Houston, see Stipulation for Compromise Settlement & Proposed
Order at 2, Houston v. United States, No. 2:08-cv-01076 (C.D. Cal. Feb. 11, 2009); and
Complaint at 3, Houston, No. 2:08-cv-01076 (C.D. Cal. Feb. 15, 2008), ECF No. 1.
Moreover, officers were not required to contribute in all cases that arose in the
Southern District of Indiana and the District of Hawaii. Zepeda was brought in the
District of Hawaii, with no contribution by the officer required to resolve the Bivens
claim. Three other Bivens cases were brought in the Southern District of Indiana in
which individual officers were not required to contribute, but the Bivens claims in each
of those cases were dismissed before settlements were entered. See Stipulation of
Dismissal, Johnson v. Merritt, No. 2:13-cv-00441 (S.D. Ind. July 22, 2016), ECF No. 107;
Final Judgment, Barker v. McPherson, No. 2:10-cv-00314 (S.D. Ind. May 4, 2015), ECF
No. 106; Penick v. United States, No. 2:12-cv-00341, 2014 WL 5431594 (S.D. Ind. Oct. 24,
2014).

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cases was more egregious or constitutionally problematic than that in the cases
in which individuals made no compensating payments.
B. Cases in Which Employees Made No Compensating Payments
In 163 of the 171 cases in our dataset, BOP employees did not contribute
any amount to the resolution of successful Bivens actions. But as noted above,
these no-contribution cases do not necessarily differ in terms of the severity or
nature of the claims being asserted from those in which employees made
payments. Thus, in the no-contribution cases, we find allegations that prison
guards used excessive force, committed sexual assault, and turned a blind eye in
allowing people confined in prison to assault each other, and that officials
failed to provide adequate medical care to incarcerated people. The records we
reviewed do not explain why the settlement of these claims was entirely
underwritten by the government, whereas a handful of apparently similar
claims were settled at the employee’s (partial) expense.
The data do reveal, though, the manner in which these no-contribution
cases evolved from suits against officers to settlements and judgments paid by
the government. Aside from one outlier,92 these cases took one of three paths
from filing to resolution that shielded individuals from liability. In 59 (36.2%)
of the 163 no-contribution cases, courts dismissed Bivens claims during the
course of litigation, or plaintiffs voluntarily dismissed Bivens claims.93 In 63
(38.7%) of these cases, plaintiffs settled their cases—which alleged both Bivens
and FTCA claims—in return for payments made by the U.S. government.94
And in 40 (24.5%) of these cases, the government appears to have restyled Bivens
claims in various ways as FTCA claims at or around the time of settlement to
facilitate payments through the Judgment Fund.95 These restylings in many
instances required the government and the district court to overlook
jurisdictional bars to the filing of the FTCA claims that replaced the Bivens

92. In one case, the plaintiff won at trial on his Bivens claim, the individual defendants

sought and received indemnification for the judgments, and the plaintiff was paid by
the U.S. government based on that indemnification agreement. Judgment in a Civil
Action, Pronin v. Duffey, No. 6:13-cv-03423 (D.S.C. Aug. 17, 2016), ECF No. 211; Jury
Instructions, Pronin, No. 6:13-cv-03423 (D.S.C. Aug. 16, 2016), ECF No. 210; Letter from
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, U.S. Dep’t of Justice,
to Michael Frazier, Associate Gen. Counsel, Fed. Bureau of Prisons (Nov. 10, 2016) (on
file with authors). We discuss the Department of Justice regulations governing
employee indemnification in Part III.
93. See infra Part II.B.1; Appendix B, Table 2.
94. See infra Part II.B.2; Appendix B, Table 3.
95. See infra Part II.B.3; Appendix B, Table 4.

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claims.96 We describe these broad practices, along with certain differentiating
refinements, in the Subparts that follow.
1.

Dismissal of Bivens claims during litigation

In fifty-nine cases, plaintiffs pursued both Bivens and FTCA claims, but the
Bivens claims were dismissed at some point during the course of litigation.97 In
thirty-seven of these cases, individual defendants were dismissed by the court
sua sponte, at the motion to dismiss or summary judgment stages, or on appeal,
and the FTCA claims proceeded and settled or went to judgment against the
United States.98 In two cases, both Bivens and FTCA claims were tried and
judgment was entered against the United States—but not against the individual
defendants—after trial.99
In twenty cases, the plaintiffs voluntarily moved to dismiss the individual
defendants during the course of litigation. These dismissals occurred months or
years before the resolution of the FTCA claims, and the available records do
not indicate whether the dismissals of the Bivens claims were related in any
way to settlement negotiations.100 But, given the government’s practice of
96. See infra notes 120-33 and accompanying text.
97. Each of these cases is set out in Appendix B, Table 2.
98. Many of these cases involved both Bivens and FTCA claims at the time of filing, but the

Bivens claim was dismissed at some point in the litigation. See, e.g., M.G. v. United States,
603 F. App’x 616 (9th Cir. 2015) (reversing on interlocutory appeal the order denying
defendants’ motion to dismiss the Bivens claim); Duran v. Lindsay, No. 1:09-cv-05238,
2015 WL 4994315, at *4, *6 (E.D.N.Y. Aug. 12, 2015) (dismissing the Bivens claim at
summary judgment); Order, Zidell v. Kanan, No. 4:10-cv-00106 (N.D. Tex. July 28,
2010), ECF No. 12 (dismissing the Bivens claim sua sponte); Manswell v. United States,
No. 1:09-cv-04102, 2010 WL 3219156, at *1 (S.D.N.Y. Aug. 12, 2010) (granting motion to
dismiss the Bivens claim); Almashleh v. United States, No. 1:06-cv-00106, 2007 WL
2406965, at *1 (W.D. Pa. Aug. 21, 2007) (dismissing the Bivens claim at summary judgment).
99. For relevant information about the two cases—Barker v. McPherson and Northington v.
Hawk-Sawyer, see Final Judgment, Barker v. McPherson, No. 2:10-cv-00314 (S.D. Ind.
May 4, 2015), ECF No. 106; Barker, No. 2:10-cv-00314, 2015 WL 2093459, at *5-6 (S.D.
Ind. May 4, 2015); Order Granting Joint Motion to Vacate, Northington v. HawkSawyer, No. 2:04-cv-01032 (C.D. Cal. Oct. 7, 2014), ECF No. 419; and Amended
Judgment, Northington, No. 2:04-cv-01032 (C.D. Cal. Mar. 20, 2014), ECF No. 410,
vacated, Order Granting Joint Motion to Vacate, Northington, No. 2:04-cv-01032 (C.D.
Cal. Oct. 7, 2014).
100. See, e.g., Order at 2, Hildebrand v. United States, No. 1:13-cv-01233 (C.D. Ill. Jan. 12,
2015), ECF No. 61 (dismissing voluntarily individual defendants before the case settled);
Final Judgment as to Certain Defendant, Lee v. United States, No. 4:12-cv-00197 (N.D.
Tex. June 18, 2012), ECF No. 17; Stipulated Order That Defendants Fausto & Dalmasi
Are Dropped as Defendants Pursuant to Fed. R. Civ. P. 21, Williams v. United States,
No. 2:11-cv-05612 (E.D. Pa. Nov. 29, 2011), ECF No. 9; Stipulation & Order of Partial
Dismissal Without Prejudice, Banks v. United States, No. 1:10-cv-05308 (E.D.N.Y.
Mar. 24, 2011), ECF No. 7; Stipulation for Partial Dismissal at 1-2, Vincent v. Fed.
Bureau of Prisons, No. 2:08-cv-03286 (C.D. Cal. Sept. 16, 2008), ECF No. 10 (dismissing
footnote continued on next page

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formally and informally substituting claims under the FTCA for Bivens claims,
and the government’s apparent view that it is preferable to settle cases under
the FTCA, it is certainly possible that at least some of the voluntary dismissals
in these twenty cases were made with an eye toward eventual settlement of the
cases through the FTCA.101
2.

Settlement of Bivens and FTCA claims with payment by the U.S.
government

In sixty-three cases, both Bivens and FTCA claims remained up until the
time of settlement, but the settlements were paid by the United States
government.102 In forty-nine of these cases, both the individual defendants and
the United States are described as parties to the settlement agreements, but the
language of the agreements or other available evidence makes clear that the
United States was the only party to pay to resolve the claims.103
In the remaining fourteen cases, both Bivens and FTCA claims remained at
settlement, but the parties agreed that the plaintiff would dismiss the Bivens
claims with prejudice and the settlement was executed solely with the United
States of America. In four of these cases, motions to dismiss the individual
defendants were filed with the court and then settlement agreements between
the plaintiffs and the United States were filed the same day or a few days
later.104 In the other ten cases, the settlement agreements explicitly state that

101.
102.
103.

104.

voluntarily individual defendants without prejudice before the case settled); Dismissal
Without Prejudice, Clark v. United States, No. 3:06-cv-00016 (S.D. Ill. Mar. 14, 2008),
ECF No. 82 (dismissing voluntarily individual defendants without prejudice before the
case settled). Note that in Hildebrand one of the defendants was dismissed for lack of
personal jurisdiction. Order & Opinion at 1-2, Hildebrand, No. 1:13-cv-01233 (C.D. Ill.
Oct. 11, 2013), ECF No. 37.
For further description of these practices and preferences, see notes 106-33 below and
accompanying text.
Each of these cases is set out in Appendix B, Table 3.
We have settlement agreements in the majority of these cases that make clear the
United States paid the settlements. In some cases, a representative from the Bureau of
Prisons confirmed via email that payments were made by the U.S. government. All
settlement agreements and email confirmations are on file with the authors.
For relevant documents regarding these four cases—Lee v. Pfister, Hill v. United States,
Fitz v. Malatinsky, and Morris v. Jones—see Stipulation to Dismiss Lt. Pfister with
Prejudice, Lee v. Pfister, No. 5:12-cv-00794 (C.D. Cal. June 13, 2017), ECF No. 194
(dismissing voluntarily individual defendant the same day the parties filed a settlement
agreement regarding the FTCA claim); Settlement Agreement at 7, Hill v. United
States, No. 1:13-cv-03404 (D. Colo. May 29, 2015) (providing that the plaintiff agrees to
“dismiss the Bivens Defendants with prejudice and will file an amended complaint that
contains an injunctive relief claim against the BOP and a negligence claim for failure to
protect against the United States under the Federal Tort Claims Act” and that “Plaintiff
will sign a standard FTCA stipulation and a stipulation of dismissal” once the
complaint has been amended); Stipulated Order of Dismissal, Fitts v. Malatinsky,
footnote continued on next page

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payment to resolve the FTCA claim was to be made on the condition of
dismissing the individual Bivens claims, but there was no separate
documentation of the dismissal of the individual defendants.105
3.

Substitution of FTCA claims for Bivens claims as a condition of
settlement

In forty cases, plaintiffs had only Bivens claims against individual officers
immediately preceding the time of settlement, but the U.S. government paid
the settlements nevertheless.106 In twenty-one of these cases, the parties
formally substituted an FTCA claim for the Bivens claim or added an FTCA
claim to the complaint at or around the time of settlement.107 In the other
nineteen cases, there was no formal substitution of an FTCA claim for a Bivens
claim, but the settlements were paid by the United States as though the cases
were brought under the FTCA.108 These formal and informal substitutions of

105.

106.
107.
108.

No. 2:10-cv-11100 (E.D. Mich. July 23, 2012) (dismissing voluntarily the only individual
defendant one day before the voluntary dismissal of the case), ECF No. 42; and
Stipulation of Dismissal of Certain Defendants, Morris v. Jones, No. 2:08-cv-03842 (E.D.
Pa. Aug. 25, 2011) (dismissing voluntarily individual defendants four days before the
voluntary dismissal of the case), ECF No. 101.
For relevant documents related to four of these cases—Chicarielli v. United States, Luna v.
Jordan, Cottini v. United States, and Gil v. Reed—see Stipulation & Order of Settlement &
Dismissal at 2-3, Chicarielli v. United States, No. 1:14-cv-06765 (S.D.N.Y. May 17, 2016),
ECF No. 51 (“WHEREAS, Plaintiff has decided to voluntarily dismiss with prejudice all
claims against the Agency Defendants and the Individual Defendants, and all claims
against the United States other than the FTCA Claim . . . [t]he United States agrees to
pay to Plaintiff the sum of thirty-six thousand five hundred dollars ($36,500.00) (the
‘Settlement Amount’) in connection with the FTCA Claim.”); Stipulation for
Compromise Settlement & Release of Tort Claims at 2-5, Luna v. Jordan, No. 1:14-cv02028 (M.D. Pa. Jan. 27, 2015) (providing that the United States agrees to pay $5350 and
that “[t]he parties further understand and agree that all individual Defendants who
have been named in this case are dismissed from the case with prejudice, and that no
claims against any individual Defendants arising from the acts and allegations
complained of in the complaint survive this settlement agreement and release”) (on file
with authors); Stipulation for Compromise Settlement at 2, Cottini v. United States,
No. 2:10-cv-00294 (C.D. Cal. Mar. 13, 2012), ECF No. 118 (“In exchange for a payment of
$200,000, paid on behalf of the United States only, Plaintiffs agree to dismiss with
prejudice the Bivens claims against the individual defendants . . . .”); and Stipulation for
Compromise Settlement and Release of Federal Tort Claims Act Claims Pursuant to 28
U.S.C. § 2677 at 2-3, Gil v. Reed, No. 3:00-cv-00724 (W.D. Wis. Feb. 23, 2009) (“The
United States of America agrees to pay the sum of $20,000 which sum shall be in full
settlement and satisfaction of any and all claims . . . . Plaintiffs agree that all claims
against the individual defendants, James Reed and Jaime Penaflor, will be dismissed
with prejudice as part of this settlement.”) (on file with authors).
Each of these cases is set out in Appendix B, Table 4.
See infra notes 109-19 and accompanying text.
See infra notes 135-37 and accompanying text.

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the United States for individual defendants occurred in a variety of ways,
outlined in the Subparts that follow.
a.

Formal substitution

In twenty-one cases, an FTCA claim was formally substituted for the
Bivens claim or added to the complaint as a condition of settlement. In seven of
these twenty-one cases, the plaintiffs amended their complaints to dismiss the
Bivens defendants and add FTCA claims against the United States at or around
the time of settlement.109 In two of the twenty-one cases, the plaintiffs moved
to amend their complaint to add an FTCA claim without dismissing the Bivens
claims, and the United States agreed to pay the settlement.110 In three of the
109. For documents relevant to Shepherd v. Palmer, see Letter from Surinder K. Aggarwal to

Noel L. Hillman, Judge, U.S. Dist. Court, Dist. of N.J., Shepherd v. Palmer, No. 1:14-cv02992 (D.N.J. Aug. 17, 2016), ECF No. 51 (providing notice of settlement); and Consent
Order Nunc Pro Tunc to Grant Plaintiff Leave to File a Second Amended Complaint,
Shepherd, No. 1:14-cv-02992 (D.N.J. July 28, 2016), ECF No. 49. For documents relevant
to Montoya v. Wall, see Stipulation for Compromise Settlement & Release of Federal
Tort Claims Act Claims Pursuant to 28 U.S.C. § 2677, Montoya v. Wall, No. 1:11-cv01414 (C.D. Ill. Oct. 30, 2014), ECF No. 51-1; and Unopposed Motion for Leave to File an
Amended Complaint at 2, Montoya, No. 1:11-cv-01414 (C.D. Ill. Oct. 22, 2014), ECF
No. 49. For documents relevant to Stine v. Allred, see Third Amended Verified Prisoner
Complaint, Stine v. Allred, No. 1:11-cv-00109 (D. Colo. Apr. 12, 2013), ECF No. 358; and
Stipulation for Compromise Settlement & Release of Federal Tort Claims Act Claims
Pursuant to 28 U.S.C. § 2672, Stine, No. 1:11-cv-00109 (D. Colo. Apr. 12, 2013) (on file
with authors). For documents relevant to Freeman v. Woolston, see Plaintiff ’s Motion to
Enforce Settlement Agreement at 5, Freeman v. Woolston, No. 1:11-cv-01756 (D. Colo.
Jan. 13, 2014), ECF No. 277. For documents relevant to Ellis v. United States, see
Stipulation of Dismissal with Prejudice, Ellis v. United States, No. 1:08-cv-00160 (W.D.
Pa. Nov. 14, 2012), ECF No. 98; and Amended Complaint, Ellis, No. 1:08-cv-00160 (W.D.
Pa. July 25, 2012), ECF No. 96. For documents relevant to Johnson v. Martinez, see Second
Amended Complaint at 5, Johnson v. Martinez, No. 2:04-cv-01967 (E.D. Pa. Mar. 8,
2007), ECF No. 52; and U.S. Fed. Bureau of Prisons, Case Details: Johnson v. Martinez et al
(2016) (on file with authors) (showing payment of settlement in Johnson, No. 2:04-cv01967 (E.D. Pa.)).While the plaintiff in Johnson framed his claims under § 1983, they
were properly understood by the court to be Bivens claims. See Johnson, No. 2:04-cv01967, 2006 WL 208640, at *2 n.9 (E.D. Pa. Jan 19, 2006). For documents relevant to
Shannon v. Federal Bureau of Prisons, see Settlement Agreement at 2, Shannon v. Fed.
Bureau of Prisons, No. 1:03-cv-00352 (D. Colo. Dec. 1, 2006), ECF No. 134; and
Unopposed Motion for Leave to File Second Amended Complaint at 1, Shannon,
No. 1:03-cv-00352 (D. Colo. Oct. 25, 2006), ECF No. 127.
110. For information about Al-Kidd v. Sugrue, see Settlement Agreement & Release at 1-2,
Al-Kidd v. Sugrue, No. 5:06-cv-01133 (W.D. Okla. Mar. 24, 2008) (on file with authors);
and Plaintiff ’s Consent Motion to File a Fourth Amended Complaint at 2, Al-Kidd,
No. 5:06-cv-01133 (W.D. Okla. Jan. 23, 2008), ECF No. 56 (seeking leave to add the
FTCA claim without removing the Bivens claim). For information about Buckley v.
Harding, see Amended Complaint at 5, Buckley v. Harding, No. 1:06-cv-00413 (D. Colo.
Aug. 20, 2007), ECF No. 60; and Stipulation for Compromise Settlement ¶ 4, Buckley,
No. 1:06-cv-00413 (D. Colo. Aug. 8, 2007) (on file with authors).

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twenty-one cases, the settlement agreements provided that the United States
would pay plaintiffs to resolve an FTCA administrative claim on the condition
that the pending Bivens claims were voluntarily dismissed.111
In another three cases, defendants filed a motion to substitute the United
States as a party defendant for the named officers, but plaintiffs never filed new
amended complaints naming the United States as the sole defendant.112 For
example, in Laurent v. Castellanos, the pro se plaintiff alleged that on January 27,
2012, defendant officers put him, handcuffed, in a “reck [sic] pen” area with
another prisoner and then watched without intervening as the plaintiff was
beaten.113 Laurent filed a civil suit against the individual officers on May 27,
2014.114 After almost two years litigating the case, the parties came to a
settlement in principle, conditioned on the substitution of the individual
defendants for the United States. As the Assistant U.S. Attorney explained to
the judge in the case:
The parties have an agreement in principal [sic] to settle this matter, subject to
formal approval of this office and the Bureau of Prisons. As part of that
agreement in principal [sic], the undersigned will file a certification of scope and
notice of substitution, substituting the United States for the individual defendants
in this action, with respect to the negligence and intentional tort claims in

111. See Stipulation for Compromise Settlement & Release of Federal Tort Claims Act

Claims Pursuant to 28 U.S.C. § 2672, at 1-2, Caballero v. Mejia, No. 4:13-cv-00630 (N.D.
Fla. Sept. 4, 2015), ECF No. 108-1 (providing in the settlement agreement that the
United States will pay to resolve plaintiff ’s administratively filed FTCA claim upon
dismissal of the Bivens action); Order on Motion from Relief from Agreement, Order
Closing Case Pursuant to Stipulation, & Order Denying All Other Pending Motions at
2, Gillings v. Lepe, No. 1:12-cv-01533 (E.D. Cal. Feb. 26, 2015), ECF No. 72 (discussing
the government’s agreement to settle a previously denied FTCA claim in exchange for
the plaintiff dismissing the Bivens claims); Release & Settlement Agreement at 2,
Nunez v. Lindsay, No. 3:05-cv-01763 (M.D. Pa. June 9, 2007) (on file with authors)
(providing in the settlement agreement that the plaintiff will file an administrative
FTCA claim and that the government will pay to settle that claim in exchange for the
plaintiff dismissing the Bivens suit).
112. For information about the three cases—Laurent v. Castellanos, De Anda v. Smith, and
Williams v. Warmerdorf—see Certification of Scope of Employment & Notice of
Substitution of United States as Party Defendant for Officer A. Castellanos, Officer
Sheperd, Officer P. Naupari, & D. Garcia at 1-2, Laurent v. Castellanos, No. 1:14-cv-03340
(E.D.N.Y. Mar. 7, 2016), ECF No. 79; Joint Motion to Dismiss Individual Defendants &
Substitute the United States of America at 1, De Anda v. Smith, No. 1:10-cv-01094 (C.D. Ill.
Sept. 3, 2013), ECF No. 77; and Notice of Substitution at 1, Williams v. Warmerdorf,
No. 3:07-cv-01283 (M.D. Pa. Aug. 3, 2011), ECF No. 128.
113. Civil Rights Complaint at 15, Laurent, No. 1:14-cv-03340 (E.D.N.Y. May 27, 2014), ECF No. 1.
114. The complaint does not clearly describe the plaintiff ’s cause of action, see id., but was
treated by the judge in the case and the defendants as a Bivens claim, see Status Report at
1, Laurent, No. 1:14-cv-03340 (E.D.N.Y. Feb. 8, 2016), ECF No. 77.

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plaintiff’s Amended Complaint. Plaintiff has agreed to dismiss the claims against
the individual defendants and settle this matter with the United States.115

The settlement agreement was signed by the parties, and provided that the
United States would pay $5500 to the plaintiff to settle the matter.116
In six cases, there was no formal amendment of the complaint, but the
settlement agreement provided that the United States was substituting itself
for the individual Bivens defendants.117 For example, in McCarroll v. Matteau,
the plaintiff brought a Bivens action alleging that an officer retaliated against
him for engaging in legal work.118 The plaintiff never alleged an FTCA claim
and the defendant never asserted that the case was properly brought under the
FTCA, but the settlement agreement provided that “[t]he parties agree that
plaintiff’s complaint is to be construed as a complaint for damages pursuant to
the Federal Tort Claims Act . . . and that any claims filed pursuant to Bivens . . .
are hereby withdrawn.”119
In at least thirteen of these twenty-one cases, government agents and
courts agreed to payments on FTCA claims with no indication that the FTCA
claims were administratively exhausted or filed within the appropriate statute

115. Status Report, supra note 114, at 1-2.
116. Stipulation for Compromise Settlement & Release of Federal Tort Claims Act Claims

Pursuant to 28 U.S.C. § 2677, at 3, Laurent, No. 1:14-cv-03340 (E.D.N.Y. May 3, 2016) (on
file with authors).
117. See Stipulation & Order to Modify Caption & Dismiss Case with Prejudice at 2-3,
Bolden v. Beaudouin, No. 1:14-cv-05470 (E.D.N.Y. Apr. 12, 2017), ECF No. 69 (providing
in the settlement agreement that the United States “has, by operation of law, been
substituted as the sole defendant with respect to any of plaintiff’s claims . . . which
sound in state law tort”); Stipulation for Compromise Settlement & Release at 1,
Brizard v. Terrell, No. 1:11-cv-02274 (E.D.N.Y. Dec. 3, 2013) (on file with authors)
(providing in the settlement agreement that the Attorney General “certified, by the
authority vested in him . . . that Defendant was acting within the course and scope of
his employment as an employee of the United States of America at all times relevant to
Plaintiff ’s Complaint, and thus, the United States was hereby substituted by operation
of law as a party defendant for Defendant for purposes of any claims or liability under
the Federal Tort Claims Act”); Stipulation for Compromise Settlement Pursuant to
28 U.S.C. § 2677, at 1-2, McCarroll v. Matteau, No. 9:09-cv-00355 (N.D.N.Y. Aug. 26,
2013), ECF No. 62; Stipulation & Order of Settlement & Dismissal at 2, Garcia v. Hicks,
No. 1:08-cv-07778 (S.D.N.Y. May 7, 2013), ECF No. 108 (providing, in the settlement
agreement, that “[t]he United States is substituted as a defendant for defendants Hicks
and Suarez”); Notice of Substitution, Williams v. Smith, No. 1:07-cv-01382 (M.D. Pa.
Apr. 15, 2013), ECF No. 115 (filing formal substitution of the United States for
individual defendants before filing of the settlement); see also U.S. Fed. Bureau of
Prisons, Case Details: Hammond v. Sherman (2016) (on file with authors) (reporting, in
the BOP’s case details for Hammond v. Sherman, No. 1:05-cv-00339 (W.D. Pa.), that the
“[c]ase [was] converted to FTCA, Bivens defendants dismissed” (capitalization altered)).
118. Complaint at 3-4, 27, McCarroll, No. 9:09-cv-00355 (N.D.N.Y. Mar. 27, 2009), ECF No. 1.
119. Stipulation for Compromise Settlement Pursuant to 28 U.S.C. § 2677, supra note 117, at 1-2.

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of limitations.120 For example, in Johnson v. Martinez, the plaintiff alleged he
was provided inadequate medical care in July 2002.121 The case was filed as a
Bivens case, but the parties agreed after three years of litigation that the
plaintiff would dismiss claims against the individual defendants and file an
amended complaint against only the United States because it was “necessary to
allow settlement of the case.”122 The amended complaint was filed in March
2007 and the case was voluntarily dismissed that month.123 There is no
indication in the amended complaint or motion papers that the plaintiff
exhausted his administrative remedies under FTCA, and no recognition of the
fact that the case was filed long after the statute of limitations on the FTCA
claim had run. Another case, Stine v. Allred, was brought as a Bivens claim by a
pro se plaintiff who alleged inadequate dental care.124 The parties reached a
settlement on April 12, 2013; as the transcript of a court conference that day
makes clear, the parties agreed that the plaintiff would file an amended
120. As we discuss below in notes 205-06 and accompanying text, the filing of an

121.
122.

123.

124.

administrative claim pursuant to 28 U.S.C. § 2401 is a jurisdictional requirement. And
prior to the Supreme Court’s decision in United States v. Kwai Fun Wong, 135 S. Ct. 1625,
1633 (2015), filing an administrative claim within the time requirements set forth by
§ 2401(b) was jurisdictional in most circuits. See infra notes 210-13 and accompanying
text. For three cases in which there is an indication that the plaintiff exhausted
administrative requirements, see Order Denying the Motion for an Order Allocating
the Settlement Proceeds at 1, Caballero v. Mejia, No. 4:13-cv-00630 (N.D. Fla. Oct. 7,
2015), ECF No. 113 (discussing the parties’ agreement to settle the FTCA claim and
noting that “the practical effect [of the settlement] was to end this Bivens case as well”);
Plaintiff ’s Agreed Motion to Apportion Settlement Funds Equally Between Claims
Alleged Pursuant to Bivens & the Federal Tort Claims Act at 1, Caballero, No. 4:13-cv00630 (N.D. Fla. July 20, 2015), ECF No. 103 (“At the request of the Government,
Plaintiff never filed a complaint to initiate a formal action for the FTCA Claim.”);
Unopposed Motion for Leave to File an Amended Complaint at 2, Montoya v. Wall,
No. 1:11-cv-01414 (C.D. Ill. Oct. 22, 2014), ECF No. 49 (reporting, in the motion to
amend the complaint to dismiss Bivens causes of action and add an FTCA claim, that the
plaintiff exhausted the FTCA claim before filing and that the original complaint was
filed within the statute of limitations); Plaintiff ’s Fourth Amended Complaint at 14, AlKidd v. Sugrue, No. 5:06-cv-01133 (W.D. Okla. Jan. 23, 2008), ECF No. 56-1 (reporting,
in a proposed amended complaint adding the FTCA claim, that administrative
remedies were exhausted).
Second Amended Complaint at 2-4, Johnson v. Martinez, No. 2:04-cv-01967 (E.D. Pa.
Mar. 8, 2007), ECF No. 52.
Uncontested Motion for Leave to File Amended Complaint at 1, Johnson, No. 2:04-cv01967 (E.D. Pa. Mar. 2, 2007), ECF No. 49; see also Stipulation for Voluntary Dismissal
with Prejudice of All Claims Against Defendants Martinez, Zagame, & Hofferica at 1-2,
Johnson, No. 2:04-cv-01967 (E.D. Pa. Mar. 2, 2007), ECF No. 48.
Order, Johnson, No. 2:04-cv-01967 (E.D. Pa. Mar. 22, 2007), ECF No. 53 (reporting
settlement and ordering dismissal of the case); Second Amended Complaint, Johnson,
No. 2:04-cv-01967 (E.D. Pa. Mar. 8, 2007), ECF No. 52.
Prisoner Complaint at 4, 4A, Stine v. Allred, No. 1:11-cv-00109 (D. Colo. Jan. 14, 2011),
ECF No. 1.

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complaint (that substituted the United States for the individual defendants
named in the case) and then the United States would pay the plaintiff $2000
from the Judgment Fund.125 There was no indication in the amended
complaint that the plaintiff had administratively exhausted his claim, and the
claim was filed beyond the statute of limitations.126
Moreover, in another five of these twenty-one cases, the United States
agreed to pay to resolve FTCA claims that were previously dismissed by
the court or rejected through the administrative process. For example, in
Shepherd v. Palmer, the court dismissed the plaintiff’s FTCA claim sua sponte
125. See Transcript of Rule 16(b) Scheduling Conference Held on April 12, 2013 at 6-8, Stine,

No. 1:11-cv-00109 (D. Colo. May 16, 2013), ECF No. 362; Third Amended Verified
Prisoner Complaint at 1, Stine, No. 1:11-cv-00109 (D. Colo. Apr. 12, 2013), ECF No. 358;
Stipulation for Compromise Settlement & Release of Federal Tort Claims Act Claims
Pursuant to 28 U.S.C. § 2672, at 1-2, Stine, No. 1:11-cv-00109 (D. Colo. Apr. 12, 2013) (on
file with authors).
126. For other cases in which FTCA claims were added without evidence of exhaustion
prior to the two-year statute of limitations, see Stipulation & Order to Modify Caption
& Dismiss Case with Prejudice at 2-4, Bolden v. Beaudouin, No. 1:14-cv-05470 (E.D.N.Y.
Apr. 12, 2017), ECF No. 69 (showing the substitution of FTCA claim for the Bivens
claim in amended complaint post-settlement, past the statute of limitations, and with
no indication the FTCA claim was exhausted); Stipulation & Order of Settlement &
Dismissal, Garcia v. Watts, No. 1:08-cv-07778 (S.D.N.Y. May 7, 2013), ECF No. 108
(showing the substitution of FTCA claim for the Bivens claim in stipulation of
settlement with no FTCA claim—without amending the complaint—past the statute of
limitations and with no indication that the FTCA claim was exhausted); Status Report
at 1-2, Laurent v. Castellanos, No. 1:14-cv-03340 (E.D.N.Y. Feb. 8, 2016), ECF No. 77
(showing the substitution of FTCA claims for tort claims against individual
defendants); Joint Status Report at 1, Freeman v. Woolston, No. 1:11-cv-01756 (D. Colo.
Sept. 13, 2013), ECF No. 270 (showing the substitution of FTCA claim for the Bivens
claim past the statute of limitations, and with no indication the FTCA claim was
exhausted); Joint Motion to Dismiss Individual Defendants & Substitute the United
States of America at 1-2, De Anda v. Smith, No. 1:10-cv-01094 (C.D. Ill. Sept. 3, 2013),
ECF No. 77 (showing the substitution of FTCA claims for claims against individual
defendants); Notice of Substitution, Williams v. Smith, No. 1:07-cv-01382 (M.D. Pa.
Apr. 15, 2013), ECF No. 115 (showing the substitution of FTCA claim for the Bivens
claim two days before settlement by operation of letter—without amending the
complaint—past the statute of limitations and with no indication that the FTCA claim
was exhausted); Amended Complaint at 2, Buckley v. Harding, No. 1:06-cv-00413 (D.
Colo. Aug. 20, 2007), ECF No. 60 (substituting FTCA claim for the Bivens claims in
amended complaint post-settlement, past the statute of limitations, and with no
indication the FTCA claim was exhausted); Release & Settlement Agreement at 2,
Nunez v. Lindsay, No. 3:05-cv-01763 (M.D. Pa. June 9, 2007) (on file with authors)
(showing substitution of administrative FTCA claim for the Bivens claim); U.S. Fed.
Bureau of Prisons, Case Details: Hammond v. Sherman et al (2016) (on file with authors)
(describing Hammond v. Sherman, No. 1:05-cv-00339 (W.D. Pa.), as having been
“converted to FTCA” and noting that the Bivens defendants were dismissed
(capitalization altered)); U.S. Fed. Bureau of Prisons, Case Details:Williams v. Warmerdorf
et al (2016) (on file with authors) (identifying Williams v. Warmerdorf, No. 3:07-cv-01283
(M.D. Pa.), as a “Bivens 8th Amend[ment]” type case and noting that the case has been
“converted to FTCA” (capitalization altered)).

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with prejudice because he had not complied with exhaustion requirements for
that claim.127 After the Bivens claims were litigated for two years, the parties
submitted a joint agreement that the plaintiff would file an FTCA claim and
dismiss the individual defendants.128 The amended FTCA complaint was filed,
and a settlement agreement between the plaintiff and the United States was
filed less than two weeks later.129 In another case, Willis v. Lappin, the
plaintiff’s FTCA claims and his Bivens claims against all but one officer were
dismissed by the court at summary judgment.130 The United States
subsequently agreed to pay $3000 to the plaintiff to resolve the remaining
Bivens claim.131 Although the FTCA claim against the United States had been
dismissed by the court, the settlement document was titled “Stipulation for
Compromise Settlement and Release of Federal Tort Claims Act Claims
Pursuant to 28 U.S.C. § 2677.”132 Finally, in Gillings v. Lepe, the plaintiff filed an
administrative FTCA claim, which was denied, then filed his Bivens case, after

127. Order at 3, Shepherd v. Palmer, No. 1:14-cv-02992 (D.N.J. June 25, 2014), ECF No. 10.
128. Consent Order Nunc Pro Tunc to Grant Plaintiff Leave to File a Second Amended

Complaint, supra note 109, at 1-2.
129. See Letter from Surinder K. Aggarwal to Noel L. Hillman, supra note 109; Second

Amended Complaint at 2, Shepherd, No. 1:14-cv-02992 (D.N.J. Aug. 4, 2016), ECF No. 50.
Such a sequence of events is not uncommon. See Opinion & Order at 4-5, Brizard v.
Terrell, No. 1:11-cv-02274 (E.D.N.Y. Aug. 27, 2012), ECF No. 39 (dismissing plaintiff ’s
initial FTCA claim for failure to exhaust); Stipulation for Compromise Settlement &
Release at 1, Brizard, No. 1:11-cv-02274 (E.D.N.Y. Dec. 16, 2013), ECF No. 60
(substituting the United States for the individual defendant at settlement);
Memorandum Order at 7, Ellis v. United States, No. 1:08-cv-00160 (W.D. Pa. Sept. 28,
2009), ECF No. 41 (dismissing plaintiff ’s initial FTCA claims at summary judgment);
Amended Complaint, Ellis, No. 1:08-cv-00160 (W.D. Pa. Nov. 13, 2012), ECF No. 97
(amending the complaint as a condition of settlement years later by dismissing the
Bivens claims and substituting the United States for the individual defendant).
130. Order Adopting Findings & Recommendations, Order Granting in Part Defendant’s
Motion to Dismiss, Order for This Case to Proceed Only Against Defendant Devere for
Failure to Protect Plaintiff Under the Eighth Amendment, & Order Dismissing All
Other Claims & Defendants at 3, Willis v. Lappin, No. 1:09-cv-01703 (E.D. Cal. Mar. 19,
2013), ECF No. 60.
131. See Stipulation for Compromise Settlement & Release of Federal Tort Claims Act
Claims Pursuant to 28 U.S.C. § 2677, at 1-2, Willis, No. 1:09-cv-01703 (E.D. Cal. May 17,
2013) (filed as an exhibit to Expedited Motion to Enforce Settlement, Willis, No. 1:09cv-01703 (E.D. Cal. July 22, 2013), ECF No. 66).
132. Id.; see also Order Adopting Findings & Recommendations, Order Granting in Part
Defendant’s Motion to Dismiss, Order for This Case to Proceed Only Against
Defendant Devere for Failure to Protect Plaintiff Under the Eighth Amendment, &
Order Dismissing All Other Claims & Defendants at 3, Willis, No. 1:09-cv-01703 (E.D.
Cal. Mar. 19, 2013), ECF No. 60.

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which the U.S. government offered to settle the previously denied FTCA claim
in exchange for dismissal of the Bivens case.133
Although the litigation records in most of these cases offer few clues about
the negotiations that led to these formal substitutions of FTCA claims for
Bivens claims, there are occasional indications that the government was more
willing to settle cases brought under the FTCA than under Bivens. For example,
in Al-Kidd v. Sugrue, a Bivens case challenging the plaintiff’s detention under the
material witness statute, the plaintiff moved to file a Fourth Amended
Complaint that dismissed the Bivens claim and added an FTCA claim,
explaining that “[t]he parties agree that adding a cause of action under the
FTCA against the United States, based on the same allegations that have
already been pleaded against Warden Sugrue . . . would facilitate settlement of
this action.”134
b. Informal substitution
In nineteen cases, the United States was never formally substituted for the
individual defendants in the cases, but it was clear from the settlement
agreement or from our conversations with plaintiffs’ or government attorneys
in these cases that the United States paid the settlements. For example, in
Brown v. Laing, a Bivens case in which the plaintiff was beaten by BOP officers,
the pro se plaintiff never named the United States or brought an FTCA claim,
but the settlement agreement was entered into among the plaintiff, individual
defendants, and the United States of America and was described as a “complete
and final settlement under the Federal Torts Claims Act of matters involved in,
or relating to, or arising out of, the above-captioned case.”135 Similarly, in
Merriweather v. Zamora and Brown v. Blocker, the United States was not a party
to either case (although it was named in the settlement agreement), but the
133. See Opposition to Motion to Alter & or Rescission of [sic] Settlement Agreement &

Countermotion to Dismiss with Prejudice at 2-3, Gillings v. Lepe, No. 1:12-cv-01533
(E.D. Cal. Jan. 28, 2015), ECF No. 67.
134. Plaintiff ’s Consent Motion to File a Fourth Amended Complaint at 2, Al-Kidd v.
Sugrue, No. 5:06-cv-01133 (W.D. Okla. Jan. 23, 2008), ECF No. 56; see also, e.g.,
Stipulation for Voluntary Dismissal with Prejudice of All Claims Against Defendants
Martinez, Zagame, & Hofferica at 1-2, Johnson v. Martinez, No. 2:04-cv-01967 (E.D. Pa.
Mar. 2, 2007), ECF No. 48 (noting that with the plaintiff ’s amended complaint, claims
against the individual defendants would be dismissed and that plaintiff would only
proceed on his claims against the United States); Second Amended Complaint at 2,
Johnson, No. 2:04-cv-01967 (E.D. Pa. Mar. 8, 2007), ECF No. 52 (naming the United States
as the defendant); Uncontested Motion for Leave to File Amended Complaint, Johnson,
No. 2:04-cv-01967 (E.D. Pa. Mar. 2, 2007), ECF No. 49 (reporting that amending the
complaint was “necessary to allow settlement of the case”).
135. Settlement Agreement & Release of All Claims at 1, Brown v. Laing, No. 6:09-cv-00392
(E.D. Ky. Sept. 21, 2012) (on file with authors).

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United States paid the settlements.136 Another sixteen Bivens actions in the
dataset resulted in similar agreements with the United States—the settlement
agreements are described as settlements of FTCA claims or settlements with
payments by the United States, but the plaintiff never filed a complaint with a
cause of action under the FTCA.137 There is no indication that FTCA claims
were administratively exhausted in any of these nineteen cases, and in the vast
majority of them it is inconceivable that any FTCA claim could have been filed
within the statute of limitations.
C. The Impact of Judgment Fund Payments on the Bureau of Prisons
Our research makes clear that Bureau of Prisons employees very rarely
contributed to settlements and judgments in actions brought against them.
These data also establish that the employing agency, the BOP, was not held
financially responsible for the settlement of these cases. Instead, all available
evidence suggests that the settlements were satisfied through the Judgment
Fund, and that costs of settlements and judgments were not taken from the
BOP’s budget. Many settlement agreements expressly state that the settlement
funds were being paid from the U.S. Treasury (where the Judgment Fund is

136. Complaint at 1-2, Merriweather v. Zamora, No. 2:04-cv-71706 (E.D. Mich. May 12,

2004), ECF No. 3 (alleging the prison violated the plaintiffs’ mail privacy rights); Email
from Daniel Manville, Clinical Professor, Mich. State Univ. Coll. of Law, to Joanna C.
Schwartz, Professor of Law, UCLA Sch. of Law (May 20, 2018, 6:33 PM) (on file with
authors) (“The government paid the settlement in Merriweather. I got one check and it
was from the government.”); see also Stipulation for Compromise Settlement at 1-2,
Brown v. Blocker, No. 2:09-cv-00434 (D.S.C. Mar. 26, 2010), ECF No. 45 (providing that
“[t]he United States agrees to pay to Lloyd Eugene Brown $15,000.00 in full settlement”
of his claims against the individual defendants); Complaint at 12-13, Brown, No. 2:09cv-00434 (D.S.C. Feb. 23, 2009), ECF No. 1 (alleging failure to accommodate medical
condition and denial of adequate medical care).
137. See, e.g., Stipulation for Compromise Settlement & Release of Federal Tort Claims Act
Claims Pursuant to 28 U.S.C. § 2672, at 1, Mundo v. Shaw, No. 1:12-cv-00184 (N.D. W.
Va. Jan. 6, 2014) (describing the settlement as a “Stipulation for Compromise Settlement
and Release of Federal Tort Claims Act Claims,” where the United States was never
named as a defendant in the case alleging religious discrimination and harassment);
Settlement Agreement & Release of All Claims at 2, Brown, No. 2:09-cv-00392 (E.D. Ky.
Sept. 21, 2012) (noting in the settlement agreement that the $9000 settlement shall be
paid “by government electronic fund transfer”); Settlement Agreement & Release
Between Plaintiff & Bureau of Prisons at 4, Montgomery v. Johnson, No. 7:05-cv-00131
(W.D. Va. Apr. 27, 2010) (providing that the entirety of settlement will be paid “by a
check drawn on the Treasury of the United States”); Stipulation for Compromise
Settlement at 2, 4-5, Green v. Wiley, No. 1:07-cv-01011 (D. Colo. July 1, 2009), ECF
No. 137 (noting plaintiff ’s allegations of inadequate medical care and providing that the
$2100 to be paid by the U.S. government was “in settlement of his Federal Tort Claim
Act action as set forth in the above-captioned case,” where there was no claim against
the United States or assertion of an FTCA claim).

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located).138 And our conversations with BOP representatives confirm that
payments of FTCA and Bivens claims are almost certainly paid from the
Judgment Fund.139
The records we examined additionally suggest that the BOP has only
incomplete information about the cases that were settled on behalf of their
officers. The case files produced by the BOP in response to our FOIA request
did not consistently include the causes of action alleged, and many case files did
not include a settlement agreement or other evidence of the amount paid to
resolve them.140 We understand from our communications with the BOP that
the agency and its officers are typically represented in these cases by lawyers in
local U.S. Attorneys’ offices who negotiate and draft the settlement
agreements.141 BOP attorneys “seek approval for settlement amounts but
typically don’t sign the agreements themselves,” and do not consistently retain
a copy of the agreements for the BOP’s records.142 We understand from
communication with the BOP that the agency has “an internal litigationtracking database,” and that BOP employees who enter litigation records into
138. See, e.g., Stipulation for Compromise Settlement & Release of Federal Tort Claims Act

139.

140.

141.

142.

Claims Pursuant to 28 U.S.C. § 2677, at 3, Stine v. Allred, No. 1:11-cv-00109 (D. Colo.
Apr. 12, 2013) (“Payment of the settlement amount will be made by check drawn on the
Treasury of the United States . . . .”); Settlement Agreement & Release Between Plaintiff
& Bureau of Prisons at 4, Montgomery, No. 7:05-cv-00131 (W.D. Va. Apr. 27, 2010) (same);
Stipulation & Order for Compromise Settlement & Release of Federal Tort Claims Act
Claims Pursuant to 28 U.S.C. § 2677, at 3, Oleson v. United States, No. 3:05-cv-00033
(W.D. Wisc. June 6, 2006) (same); see also, e.g., Stipulation of Dismissal at 1, Kikumura v.
Osagie, No. 1:03-cv-00236 (D. Colo. Nov. 5, 2008), ECF No. 177 (noting the parties’
stipulation to dismissal of the case with prejudice, “as the settlement payment ha[d]
been made from the Treasury Department’s Judgment Fund”).
See Email from Ian M. Guy, Supervisory Attorney-Advisor, FOIA & PA Section, Office
of Gen. Counsel, Fed. Bureau of Prisons, to Joanna C. Schwartz, Professor of Law,
UCLA Sch. Of Law (Mar. 8, 2017, 10:05 AM) (on file with authors) (“If you are seeking
information regarding which ‘pot’ of money was used to pay a settlement or judgment,
then the records do not show that information. Instead, the general rules are applicable
in a vast majority of the cases: FOIA litigation expenses are out of the BOP’s operating
budget; while virtually all tort, EEO, Bivens, etc., costs are paid from the DOJ judgment
fund.”).
In separate research conducted using the Bloomberg Law electronic database, we
identified sixty-three Bivens cases filed between 2005 and 2014 which resulted in a
settlement and which were not included in the BOP’s FOIA disclosures. See supra
note 12. We include these cases in our analysis, as is described in Appendix A. Most
relevant for this discussion is the fact that BOP did not initially produce records from
these cases in response to our FOIA requests. We have no reason to believe that the
BOP was acting in bad faith; perhaps, however, the failure to produce these records
indicates weaknesses in the BOP’s record collection and retention systems.
Email from Ronald L. Rodgers, Senior Counsel, Info. & Remedies Processing Branch,
Office of Gen. Counsel, Fed. Bureau of Prisons, to Joanna C. Schwartz, Professor of
Law, UCLA Sch. of Law (Mar. 1, 2019, 7:46 AM) (on file with authors).
Id.

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that database can include information about the amount paid to resolve a case
and the terms of the settlement agreement.143 Indeed, the BOP produced
several documents—what it referred to as “face sheets”—reflecting settlement
information entered into the BOP’s internal litigation-tracking database.144 But
the records produced by the BOP indicate that the agency has only a partial
picture of the way its activities lead to the imposition of legal liability on the
U.S. government or of what steps it could take to reduce that liability risk.
The 171 successful Bivens cases in our dataset take a variety of paths from
filing to resolution. But, in almost every instance, cases are restructured during
litigation or at settlement to substitute Bivens claims for claims under the
Federal Tort Claims Act. Government attorneys pursue this approach even
when doing so overlooks statute of limitations or jurisdictional defenses, and
even when the same attorneys have successfully sought dismissal of plaintiffs’
FTCA claims at an earlier point of the litigation. Rather than require
individual officers to bear financial liability, or seek formal indemnification by
the BOP, government attorneys appear to prefer to shift liability in Bivens cases
to the federal treasury’s Judgment Fund. As a result, both individual officers
and the BOP are spared the financial consequences of almost all successful
claims.
III. Implications
Our study calls for a fresh evaluation of the current state of Bivens doctrine.
At the most basic level, the data contradict the Supreme Court’s repeated
assertion that federal officials face a threat of significant personal financial
responsibility in these cases: The threat of personal liability appears from our
data to be far more theoretical than real. To the extent one can generalize from
our data,145 the Court’s hostility to the Bivens right to sue and its expansive
conception of qualified immunity both appear to rest on a conception of
personal liability that the facts do not sustain.
Apart from its implications for the personal liability model of Bivens
litigation, the study casts doubt on three conventional assumptions. In contrast
to the presumption that agencies must use appropriated funds to indemnify
individual officials, our data indicate that the BOP enjoys virtually airtight
protection from the financial consequences of its employees’ wrongdoing.
Second, the findings reported here call into question the reliability of
143. See Letter from Ian M. Guy, Supervisory Attorney, Fed. Bureau of Prisons, to Joanna C.

Schwartz, Professor of Law, UCLA Sch. of Law (Oct. 24, 2017) (on file with authors).
144. Id. Further research should explore whether or to what extent the BOP uses these

records in the analysis of risk.
145. We explore some of the limits of our study in Part III.E below.

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representations made by Department of Justice attorneys to all levels of the
federal judiciary about the financial threat that Bivens cases pose to federal
officials. Third, our data reveal an executive branch payment practice that may
well contravene congressional expectations about the relationship between
Bivens, the FTCA, and the Judgment Fund. We take up these implications in
turn and conclude with thoughts about the future of Bivens liability and
questions for future research.
A. Constitutional Torts and Individual Deterrence After Ziglar
Almost all modern theories of tort law proceed on the assumption that the
risk of liability shapes primary behavior.146 True, scholars recognize that tort
law’s deterrent signal can be dimmed for a variety of reasons.147 And scholars
146. See generally John C.P. Goldberg, Twentieth-Century Tort Theory, 91 GEO. L.J. 513, 525

(2003) (“And so we arrive at the baseline proposition of compensation-deterrence
theory, repeated at the outset of countless law review articles published in the last fifty
years: The function of tort law is to compensate and deter.”).
147. Both informational and structural barriers may make it extremely difficult to detect
and remedy wrongdoing, reducing the deterrent effect of potential liability in both the
constitutional and common law contexts. See Miriam H. Baer, Pricing the Fourth
Amendment, 58 WM. & MARY L. REV. 1103, 1169 (2017) (describing “run-of-the-mill
constitutional violations” as “difficult to detect”); Thomas C. Galligan, The Risks of and
Reactions to Underdeterrence in Torts, 70 MO. L. REV. 691, 698 (2005) (identifying
“difficulty of detection” as one explanation for underdeterrence in tort); Sara Sternberg
Greene, Race, Class, and Access to Civil Justice, 101 IOWA L. REV. 1263, 1274 (2016)
(reviewing research showing that unequal access to resources affects the ability to
obtain civil remedies). Even when wrongdoing is detected, entities with power to
change policies and reform behavior may ignore that information, a phenomenon one
of us has discussed in the context of suits against municipal law enforcement agencies.
Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role of Lawsuits in Law
Enforcement Decisionmaking, 57 UCLA L. REV. 1023, 1028 (2010) (reporting that many
law enforcement agencies appear not to gather and analyze litigation information for
personnel and policy implications). And individual officers may purchase insurance to
limit their risk, which results in cost spreading that can mitigate specific deterrence—
this is the familiar problem of moral hazard. See John Rappaport, How Private Insurers
Regulate Public Police, 130 HARV. L. REV. 1539, 1545 (2017) (describing concerns about
insurance and moral hazard). Finally, specific agreements to indemnify wrongdoers
may also reduce the deterrent impact of individual liability. Theodore Eisenberg &
Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641,
686 (1987) (reporting in a study of § 1983 litigation that the authors observed no cases in
which judgments or settlements were paid by individual officers, suggesting that
“rampant official fear of personal liability may be an overreaction”). In areas well
outside the context of constitutional litigation, indemnification is thought to
undermine the deterrent impact of legal sanctions. See. e.g., Samuel W. Buell, Criminal
Procedure Within the Firm, 59 STAN. L. REV. 1613, 1655-56 (2007) (discussing the
relationship between deterrence and indemnification in corporate firms, suggesting
that indemnification “causes managers to engage in desirable risk-taking once they
begin employment”); Susan B. Heyman, Corporate Privilege and an Individual’s Right to
Defend, 85 GEO. WASH. L. REV. 1112, 1160 (2017) (discussing the SEC’s position that
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continue to debate the degree to which theories of deterrence apply to the
specialized field of constitutional tort doctrine, where the government’s role in
paying compensation has been thought by some to moderate the incentive
effects of tort verdicts.148 Finally, scholars have disagreed about where the
Court might best assign the incidence of tort liability to ensure that the
relevant government actors take appropriate steps to reduce the likelihood of
constitutional violations.149
Whatever the current state of scholarly disputation (and most assume that
the liability rule matters a great deal150), the Supreme Court for its part has
been quite clear in expressing its conception of the proper function of
constitutional tort doctrine. Bivens has been justified from the outset as a means
of deterring individual officers from violating the Constitution.151 As the story
goes, if officers know that they face personal liability for constitutional
violations, they will be less likely to violate those constitutional provisions.152
The Supreme Court not only accepts deterrence assumptions wholeheartedly
in its Bivens decisions, but also sees the threat of overdeterrence as the
fundamental justification for excusing liability through the doctrine of
qualified immunity.153 The threat of personal liability has also served as a
leading justification for narrowing Bivens doctrine and refusing to extend it
further.154

148.

149.
150.

151.

152.

153.
154.

indemnification for liabilities under the Securities Act of 1933 is against public policy
because it undermines deterrence).
Daryl Levinson has expressed skepticism about the ability of money damages to deter
government officials, prompting a vigorous debate on the issue. See Daryl J. Levinson,
Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U.
CHI. L. REV. 345, 347 (2000); see also Myriam E. Gilles, Essay, In Defense of Making
Government Pay: The Deterrent Effect of Constitutional Tort Remedies, 35 GA. L. REV. 845,
861 (2001) (responding to Levinson, supra). We have discussed this literature in other
work. See Pfander & Hunt, supra note 9, at 1865; Reinert, supra note 9, at 848-49; Schwartz,
supra note 147, at 1033-34.
See supra note 8.
See Reinert, supra note 9, at 815-17 (surveying literature); see also Richard H. Fallon, Jr.,
Bidding Farewell to Constitutional Torts, 107 CALIF. L. REV. 933, 979-80 (2019) (discussing
the desirability of entity liability and the difficulty of achieving that goal in light of
sovereign immunity from suit).
See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001) (“Bivens from its inception has
been based . . . on the deterrence of individual officers who commit unconstitutional
acts.”); supra Part I.
See Malesko, 534 U.S. at 70 (“The purpose of Bivens is to deter individual federal officers
from committing constitutional violations.”); Carlson v. Green, 446 U.S. 14, 21 (1980)
(“It is almost axiomatic that the threat of damages has a deterrent effect . . . .”).
See Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982); see also supra note 62 and
accompanying text (describing the Court’s justifications for qualified immunity).
See supra Part I.C.

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Yet, our study of BOP payouts undercuts judicial and scholarly
assumptions about the financial effects of Bivens actions on one group of
federal employees. Individual officers contributed to settlements and
judgments in less than 5% of the successful Bivens cases filed against employees
of the BOP.155 When one considers the universe of all Bivens cases brought
against BOP officers, the likelihood of officer contribution appears even more
remote. One of us previously found that approximately 15.3% of Bivens actions
filed against BOP officials result in a plaintiff’s settlement or judgment.156 If so,
then over the ten-year period of this study there may have been 1100 or more
Bivens cases filed against BOP officials.157 The eight cases in which officers
contributed would amount to 0.7% of those cases filed. One final perspective
bears mentioning. The Bureau of Prisons has 36,793 employees.158
Extrapolating from the study data, and assuming that all employees engage in
wrongdoing at the same rate, less than 0.1% of BOP employees will contribute
to a settlement or judgment during a twenty-year career.159 In short, the
overriding purpose of Bivens liability—deterring the misconduct of individual
officers by imposing monetary damages for constitutional violations—appears
to have fallen out of the equation given these settlement practices. And the
overriding purpose of protecting individual officers by limiting Bivens
liability—through qualified immunity and contraction of the right to sue—
appears to be unnecessary given the ways in which Bivens actions are litigated
and resolved.
The data on individual payments further reveal that, in the rare
circumstance when defendants are obliged to use personal resources to resolve
Bivens claims, the burden invariably falls on line employees of the BOP. Thus,
155. See supra Part II.A.
156. Reinert, supra note 9, at 836.
157. Indeed, this may underestimate the total number of Bivens cases filed against BOP

employees. First, the prior research that one of us conducted regarding success rates in
Bivens cases covered only five judicial districts. Id. at 832. Second, although we have
searched exhaustively for all settlements of Bivens claims filed against BOP employees
over the study period, some may have escaped our notice. If the success rate of all Bivens
cases involving BOP employees were lower than 15%, and if there are additional Bivens
settlements that we have not uncovered, then the denominator of total Bivens claims
filed against BOP employees is likely well over 1100.
158. BOP Statistics: Staff Ethnicity/Race, FED. BUREAU PRISONS (last updated Jan. 11, 2020),
https://perma.cc/S86N-2YE8.
159. If twelve BOP employees were required to contribute to settlements and judgments
during the ten-year period of this study, then approximately twenty-four officers out
of 36,793 would contribute to settlements and judgments over a period of twenty years,
which is the length of time officers can serve before retirement. See Discover What Life
Is Like Working for the BOP, FED. BUREAU PRISONS, https://perma.cc/X6BA-3FNM
(archived Jan. 22, 2020) (explaining that officers are eligible to retire at age fifty with
twenty years of service, and at any age with twenty-five years of service).

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in the eight cases in which we identified payments from personal resources, all
payments were made by employees who have direct contact with plaintiffs in
the prison system. Five payments were from guards who committed sexual or
physical assaults on prisoners; three payments were made (perhaps with the
assistance of insurance coverage) after substandard medical care.160 In no case
did we see evidence of any personal payment by the supervisors responsible for
the prisons or practices in question. The absence of supervisory participation
in personal liability payments raises questions about the degree to which the
Supreme Court was well-advised to view personal supervisory liability as a
threat grave enough to necessitate the elaborate precautions taken in such cases
as Ashcroft v. Iqbal and Ziglar v. Abbasi.161
To be sure, individual liability does not stand alone as the only source of
deterrence (or overdeterrence) in the context of constitutional litigation.
Nonmonetary pressures of various sorts create incentives to comply with the
law.162 Officers can theoretically be deterred (and overdeterred) by the threat
of reputational harm occasioned by allegations of constitutional misconduct
(just as the reputational rewards for successful law enforcement activity may
encourage officers to take shortcuts in other contexts).163 Federal officers
might overestimate the minuscule risk that they will have to pay a Bivens
judgment,164 particularly if they attend carefully to the Department of Justice
policy on indemnification.165 And the practical consequences of being a
defendant (having to sit for a deposition or sign interrogatories) could function
as a deterrent (or overdeterrent).166 Civil rights cases can put political pressure
160. See supra notes 82-83 and accompanying text.
161. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1865 (2017) (calling for a renewed special-factors

162.

163.
164.

165.
166.

analysis of the claims against a prison warden); Ashcroft v. Iqbal, 556 U.S. 662, 686
(2009) (narrowing supervisory liability in equal protection claims and imposing a
plausibility pleading regime aimed at protecting high government officials from the
threat of personal liability).
See, e.g., Bernard Black et al., Outside Director Liability, 58 STAN. L. REV. 1055, 1139-41
(2006) (reporting that outside directors face little risk of being held personally
accountable for breaches of duty to the corporation and concluding that the more
substantial risks are the time, aggravation, and potential harm to reputation that a
lawsuit can entail).
Reinert, supra note 9, at 847-49; Schwartz, supra note 9, at 941.
Schwartz, supra note 9, at 941. This may explain the anecdotal evidence we have heard
that some federal officers purchase liability insurance. See supra note 87. Having found
nothing in our data that sheds light on the practice, we view the frequency with which
federal officers purchase such insurance as a promising topic for future research.
See infra text accompanying notes 187-88.
Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials:
Plaintiffs and Defendants as Private Attorneys General, 88 COLUM. L. REV. 247, 283 (1988);
Reinert, supra note 9, at 847-49. Criminal prosecution has the potential to deter, but
such prosecutions are rarely initiated by the Department of Justice, in part because of
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on government actors by exposing embarrassing details about official
misconduct.167 Without questioning the importance of such factors (and
without evaluating them separately168), we make the simple point that the data
collected here reveal almost no support for the notion that individual officials
face a genuine threat of personal liability, a central premise of many subsequent
limitations on Bivens liability.
B. Agency Incentives and the Role of Indemnification
Direct personal liability is not, however, the only way for Bivens to achieve
its deterrent purpose. The Supreme Court has long understood that federal
government agencies may indemnify their employees, holding them harmless
from constitutional tort and other personal liability. In the past, the Court
seemed to accept indemnification as a potential reality in Bivens litigation, but
not as a factor that argued for or against expanding personal capacity claims
against federal officials.169 In Ziglar, the Court plainly assumed that indemnity
might shift a portion of personal liability from individual Bivens defendants to
the agencies for which they worked, and for the first time viewed the
possibility of indemnification as a reason to defer to Congress and disfavor
implied Bivens actions.170 Yet the Court did not articulate a view about the
frequency with which the federal government indemnified its officers, and
which government entity would absorb the costs.
While the Court has not described the Bivens regime as a vehicle for
inducing agencies to reduce the costs of constitutional violations,171 one can
readily see how the combination of personal liability and agency indemnification
might play that role. Indemnity shifts the payment obligation, thereby
saddling the agency with liability, inducing the agency to take account of the
risk of constitutional liability and encouraging the agency to institute policies

167.

168.
169.
170.
171.

the high burden established decades ago by the Supreme Court. See Screws v. United
States, 325 U.S. 91, 103 (1945) (plurality opinion) (holding that prosecutors charging
officials with violations of 18 U.S.C. § 52 (now 18 U.S.C. § 242) must prove that the
defendant had the “specific intent” to deprive a person of their constitutional rights).
Gilles, supra note 148, at 860-61 (discussing the potential value of publicity in the
context of municipal litigation); Alexander A. Reinert, Screening Out Innovation: The
Merits of Meritless Litigation, 89 IND. L.J. 1191, 1229-30 (2014) (discussing the role of
litigation in exposing problematic institutional dynamics).
Schwartz, supra note 9, at 942-43 (reviewing literature).
See supra note 69.
Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 (2017).
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70-71 (2001); FDIC v. Meyer, 510 U.S. 471,
485-86 (1994).

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designed to prevent or reduce such risks.172 Some theories of tort liability
presume that it is rational to impose liability on the entity best situated to
make cost-effective changes that can influence the behavior of individual
actors.173 This is one of the premises behind the Supreme Court’s decision to
deny qualified immunity to municipalities in § 1983 litigation.174 To the extent
agencies must pay for settlements or judgments in lawsuits against individual
officers, agency administrators may have an incentive to minimize those
payments.175
For this theory to apply in practice, however, the agency responsible for
employing, training, and supervising employees engaged in misconduct must
172. See, e.g., SCHUCK, supra note 8, at 100-07 (seeking to determine the “cheapest cost

avoider” within the limited set of potential “public defendants” in order to deter
government misconduct); Gilles, supra note 148, at 859-67 (arguing in favor of the
deterrent effect of governmental liability); Margo Schlanger, Inmate Litigation, 116
HARV. L. REV. 1555, 1672-90 (2003) (discussing ways in which indemnification can
influence jails and prisons); cf. Michael C. Pollack, Taking Data, 86 U. CHI. L. REV. 77,
119-20 (2019) (arguing that imposing up-front costs on a government agency seeking
private information held by internet service providers may provide more individual
privacy protection than existing statutory and constitutional frameworks). Judge Jon
Newman advocated in favor of abolishing absolute immunity for judges and
prosecutors while simultaneously imposing liability on governmental agencies as a
way of increasing deterrence through entity liability rather than individual liability.
Jon O. Newman, Suing the Lawbreakers: Proposals to Strengthen the Section 1983 Damage
Remedy for Law Enforcers’ Misconduct, 87 YALE L.J. 447, 463 (1978). There are reasons to
be skeptical towards the claim that government absorption of officers’ liability will
influence policymakers’ decisions. See Barbara E. Armacost, Organizational Culture and
Police Misconduct, 72 GEO. WASH. L. REV. 453, 475 (2004) (identifying political reasons
that police officials may not take measures to prevent unconstitutional policing even
in the face of significant liability); Levinson, supra note 148, at 355-57; Schwartz, supra
note 147, at 1028 (suggesting that law enforcement agencies lack sufficient information
to guide policies in response to § 1983 lawsuits).
173. See, e.g., SCHUCK, supra note 8, at 17-18; Kramer & Sykes, supra note 8, at 285-86
(discussing the relative cost-effectiveness of imposing “strict vicarious liability” and
“vicarious liability based on negligence” in the context of municipal torts); Anthony J.
Sebok, Deterrence or Disgorgement? Reading Ciraolo After Campbell, 64 MD. L. REV. 541,
555-56 (2005) (summarizing and critiquing the “cheapest cost avoider” concept in the
context of “socially compensatory damages”); see also Reinert, supra note 9, at 815-17.
174. See Owen v. City of Independence, 445 U.S. 622, 651-52 (1980).
175. In addition to scholarly ambivalence about the manner and extent of deterrence
resulting from agency liability, see supra note 172, this claim is subject to the
recognition that the deterrent signal of individual liability can be scrambled, see supra
note 147. To be sure, when employees and their firms both face liability for the torts
committed in the course of operations, they have incentives to bargain over the
allocation of liability and may shift it among themselves by contract or otherwise. See
generally Alan O. Sykes, The Boundaries of Vicarious Liability: An Economic Analysis of the
Scope of Employment Rule and Related Legal Doctrines, 101 HARV. L. REV. 563, 566 (1988)
(“[T]he choice between a rule of personal or vicarious liability may be unimportant.”).
But if neither the employee nor the firm faces such liability, bargaining between
employee and firm may not occur.

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bear the incidence of liability.176 Our data show that, at least in the context of
settlements involving federal prison employees, the BOP incurs few if any
costs in the payment of settlements and judgments.177 The settlement practices
we have observed and documented do not give any reason to believe that the
BOP has litigation-related financial incentives to create policies and procedures
that will reduce the risk that their officers commit constitutional violations.
Other than the exceedingly rare settlement to which an individual employee
contributed, every settlement we documented here appeared to have been paid
directly by the United States Treasury from the standing Judgment Fund
appropriation, not from the budget of the individual agency. Moreover, the
BOP’s records, produced to us in response to our FOIA request, suggest that the
BOP possesses only incomplete data about the nature of claims brought against
its officers and the amounts paid to resolve these claims.178 Without more
complete information about these cases, the BOP cannot take informed steps to
reduce their incidence.
We do not mean to overstate the point. Even if the BOP paid settlements
directly, such payments would constitute a negligible portion of the BOP’s
annual budget.179 We are not certain that such modest financial signals would
have an appreciable impact on agency policy.180 But, in the analogous § 1983
176. The individuals responsible for instituting changes in policies and practices must also

177.

178.
179.

180.

learn of the underlying misconduct. See generally Schwartz, supra note 147 (reporting
that many law enforcement agencies fail to gather and analyze information from
lawsuits brought against them); Joanna C. Schwartz, What Police Learn from Lawsuits, 33
CARDOZO L. REV. 841 (2012) (describing what several litigation-attentive law
enforcement agencies have learned from lawsuits brought against them).
For similar findings regarding the insulation of local law enforcement agencies from
the costs of civil rights suits against their employees, see generally Joanna C. Schwartz,
How Governments Pay: Lawsuits, Budgets, and Police Reform, 63 UCLA L. REV. 1144 (2016).
See also Paul David Stern, Tort Justice Reform, 52 U. MICH. J.L. REFORM 649, 720-24 (2019)
(emphasizing the importance of agency financial accountability for the torts of federal
law enforcement officers).
See supra notes 140-44.
The BOP’s budget request for fiscal year 2018 was more than $7 billion. See FED. BUREAU
OF PRISONS, U.S. DEP’T OF JUSTICE, FY 2018 BUDGET REQUEST AT A GLANCE 1 (n.d.),
https://perma.cc/BP2N-SP2Y. Over the course of the ten years covered by our study,
the United States appropriated some $64 billion to the Bureau of Prisons. See NATHAN
JAMES, CONG. RESEARCH SERV., R42486, APPROPRIATIONS FOR THE BUREAU OF PRISONS
(BOP): IN BRIEF 11 tbl.A-1 (2018), https://perma.cc/4T9D-LQBU. The total value of the
Bivens claims resolved during the period in question was approximately $18.9 million,
or approximately 0.03% of the prison budget. See infra Appendix B, Tables 1-2.
We note, however, that there is empirical evidence from other contexts that suggests
that decisionmakers within federal agencies are sensitive to funding streams. See, e.g.,
Michael D. Frakes & Melissa F. Wasserman, Does Agency Funding Affect Decisionmaking?:
An Empirical Assessment of the PTO’s Granting Patterns, 66 VAND. L. REV. 67, 70 (2013)
(reporting data that suggest that decisions by patent examiners are sensitive to fiscal
implications for the Patent and Trademark Office).

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context, one of us has found some evidence of agency deterrence on the
relatively rare occasions when local law enforcement agencies are required to
pay settlements and judgments from their own budgets.181 Even modest
financial consequences appear to have some impact on agency willingness to
learn from the liability message conveyed in the lawsuits brought against
them.
Judgment Fund payments convey no comparable message. As noted
earlier, the sum total of Bivens payments represents only about 0.03% of the
budget of the BOP for the relevant period. For a person earning $100,000 per
year, that amounts to roughly $20. As a share of the entire budget of the
government of the United States over the relevant period, the payments lose
all signaling power; calibrated as a portion of the salary of our $100,000 earner,
they would represent less than a single penny.182 Building on the intuition that
such a modest payment obligation would escape the close attention of even the
most budget-conscious members of Congress, one can ask further questions
about the Court’s view of Bivens liability. As we have seen, the Court has
assumed that the expansion of Bivens liability would pose a substantial threat to
the federal budget, substantial enough in fact to warrant judicial caution in the
recognition of rights to sue. Based on the total amount of BOP payments,
however, one might doubt that even broadly expanded constitutional tort
liability would lead to financial obligations sufficient to attract congressional
attention, let alone to threaten the fisc.
We thus question the Ziglar Court’s reliance in part on fiscal concerns for
its posture of broad deference to Congress in the recognition of rights to sue
under Bivens. The Court has made no effort to quantify or understand the
threat to the fisc posed by the prospect of Bivens liability or to compare those
costs with the financial burden imposed by defending suits for injunctive and
habeas relief that the Court accepts as routine. Congress, for its part, has shown
scant interest in the role, if any, that Bivens liability plays in its management of
the nation’s finances. We know of no government effort to summarize the
181. See Schwartz, supra note 177, at 1195-96. Some evidence at the federal level suggests that

agencies comply with injunctive decrees not because of any concrete threat of
contempt sanctions but because such decrees send reputational signals that publicly
shame responsible officials. See Nicholas R. Parrillo, The Endgame of Administrative Law:
Governmental Disobedience and the Judicial Contempt Power, 131 HARV. L. REV. 685, 777-89
(2018) (exploring the role and limits of public shaming in the creation of incentives to
comply with federal judicial decrees). Constitutional tort liability borne directly by the
agency through indemnification may convey clearer reputational signals than liability
passed along to the Judgment Fund.
182. According to White House data, the federal government spent $34.3 trillion over the
ten-year period ending in 2016. See OFFICE OF MGMT. & BUDGET, HISTORICAL TABLES
332 tbl.14.2 (n.d.), https://perma.cc/4VSF-VVLE. One penny, as a share of the salary of
our hypothetical $100,000 earner, would correspond to $34.3 million of the federal
budget as a whole.

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amount of resources devoted to the defense and settlement of constitutional
tort claims, and no indication that those payments threaten federal financial
stability.183 Given the relatively modest amounts reflected in the BOP data, we
doubt that any such threat exists.
C. The Department of Justice Narrative of Personal Liability
Apart from revealing little threat of personal or agency liability, the
payment practice we document here conflicts with the rhetorical position the
government has long taken in representations made to the federal judiciary
and to the legal profession in the course of defending Bivens claims. Since the
1980s, the Department of Justice has argued in court filings and public
documents that the agency rarely if ever indemnifies individual Bivens
defendants; this lack of assured agency indemnity sets up the government’s
claim that suits brought under the Bivens doctrine expose individual defendants
to potential financial ruin.184 One finds this narrative of personal liability—
sometimes characterized as “devastating” or “ruinous” in the government’s
briefs—reflected in a series of government submissions to the Court.185 In one
brief, Department of Justice counsel explained that, in Bivens actions, “[a] public
servant’s bank account, retirement savings, even his or her home is all in
jeopardy, along with the fundamental prospect of providing for a family.”186
If one assesses the specific terms of the Department’s indemnity policy, one
finds a superficially plausible basis for these representations. Although
183. The Department of Treasury provides annual Judgment Fund reports to Congress, but

they do not purport to provide information regarding constitutional tort claims. See
Judgment Fund, Annual Report to Congress, BUREAU FISCAL SERV. (last updated Dec. 12,
2019), https://perma.cc/3FHK-9FMV.
184. See, e.g., Brief for the Petitioners at 47-48, Schweiker v. Chilicky, 487 U.S. 412 (1988)
(No. 86-1781), 1987 WL 880510 [hereinafter Schweiker Petitioners’ Brief] (arguing
against a Bivens remedy because of “ruinous personal liability”).
185. See, e.g., Brief for Petitioners Dennis Hasty & James Sherman at 2, 20, 21, 27, Ziglar v.
Abbasi, 137 S. Ct. 1843 (2017) (No. 15-1363), 2016 WL 6873021 (referring to “personal”
liability or damages four times); Reply Brief for the Petitioners at 16, Schweiker, 487 U.S.
412 (No. 86-1781), 1988 WL 1026249 [hereinafter Schweiker Petitioners’ Reply Brief]
(referring to “the devastating potential liability” facing Bivens defendants); see also
Replacement Brief for John Ashcroft, the Official Capacity Defendants-Appellees & the
United States at 43, Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (No. 06-4216-cv) (en
banc), 2008 WL 8132330 [hereinafter Arar Replacement Brief for Ashcroft] (arguing
that recognizing a Bivens claim “would put at personal risk the officials involved in
making the most sensitive and important decisions facing the nation” (emphasis
added)); infra notes 195-99 and accompanying text.
186. Defendants’ Memorandum in Opposition to Plaintiff ’s Motion for Leave to Amend &
Defendant’s Memorandum in Support of Cross-Motion to Stay Proceedings Pending
Appeal at 7, Martin v. Naval Criminal Investigative Serv., No. 3:10-cv-01879 (S.D. Cal.
Jan. 30, 2012), ECF No. 54.

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Department of Justice policies allow indemnification of its employees in
appropriate cases, the indemnification policy is quite strict. For starters, the
policy requires a finding by the Attorney General (or a designee) that
indemnity is in the interest of the United States.187 In addition, the policy
forecloses (except in exceptional circumstances) any request to “indemnify or
to settle a personal damages claim before entry of an adverse verdict, judgment,
or award.”188 So, while employees may request and receive representation by
government lawyers during the pendency of Bivens litigation, they cannot
request or secure any assurance as to indemnity for any personal liability until
after they lose in court. Such indemnity rules surely complicate the settlement
calculus for individual defendants in personal liability actions; they may prefer
to settle on terms the Department’s lawyers specify rather than submit to a
jury’s verdict as a prelude to presenting their applications for indemnity.
Whatever its impact on settlement negotiations, the Department’s
indemnity policy cannot sustain its continuing narrative of significant
personal exposure to ruinous liability. Our study shows that Bivens defendants
rarely contribute their own funds to resolve successful constitutional litigation
brought against them. Even when they do, the amounts in question do not
threaten financial devastation.189 Yet these facts have had little impact on the
government’s narrative. Government attorneys persist in describing Bivens as
potentially ruinous even though individual defendants almost never pay
judgments or settlements in successful Bivens cases. What’s more, government
attorneys play an active role in deliberately repackaging Bivens cases for
settlement under the FTCA and Judgment Fund.190 Such repackaging belies
any assertion that the Department harbors misconceptions about the ways its
practices shift the ultimate incidence of Bivens liability to the U.S. Treasury.191
187. See 28 C.F.R. § 50.15(c)(1) (2019) (permitting indemnification upon request when “such
188.

189.
190.
191.

indemnification is in the interest of the United States”).
Id. § 50.15(c)(3); see also U.S. DEP’T OF JUSTICE, JUSTICE MANUAL § 4-5.412 (2018),
https://perma.cc/5W5J-VXQ7 (noting that “there is no right to compel
indemnification” and that “[p]re-judgment indemnification is disfavored . . . and is not
available except in rare and extraordinarily compelling circumstances”).
See Appendix B, Table 1.
For examples of cases in which government attorneys repackaged claims for
settlement under the Judgment Fund, see Part II.B.3 above.
We have seen evidence that the Department of Justice actively seeks to conceal, rather
than to disclose, the nature of its settlement practices. In response to a magistrate’s
request for clarification of settlement authority and indemnification practices, the
Department replied by objecting to the order on the ground that it invaded the
discretion that the Department of Justice’s indemnity regulations had placed in the
hands of the Attorney General. See The United States Department of Justice’s Objection
to the Magistrate Judge’s Order Entered on June 22, 2011, at 3-7, Bolden v. Marberry,
No. 2:09-cv-00312 (S.D. Ind. Aug. 5, 2011), ECF No. 93. Emphasizing that the Bureau of
Prisons was not a party to the litigation, the government’s submission proceeded on
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In looking for ways to square the practices we observe in the data with the
Department of Justice narrative, we acknowledge some possible inwardfocused explanations for government attorneys’ behavior. First, government
agencies and their lawyers may find it easier to secure a settlement through the
FTCA and the Judgment Fund than through the indemnification procedures
contemplated by current regulations. After all, relevant Department of Justice
regulations explicitly disfavor prejudgment indemnification,192 and almost all
settlements in our dataset occurred in the absence of a judgment. Second,
maintaining a practice in which no employee is formally indemnified may
serve a messaging purpose in the rare case in which the Department insists on
a contribution from an individual employee. When that happens, the
Department does not have to justify to its employees fine distinctions in cases
in which it does and does not choose to indemnify under the regulations.193
Outward-focused reasons may also explain the Department’s insistence on
maintaining the fiction of individual liability in Bivens cases. Put simply, the
Department may find it strategically useful to convince judges that
indemnification is not routine. Attorneys representing federal officials are
advised from the outset of a case to reinforce to judges, “in both direct and
subtle ways,” the significant difference between individual and official capacity
suits and the practical consequences to the individual defendant.194 Most
relevant to this Article, attorneys for federal defendants have pointed to the
risk of personal liability and the uncertainty of indemnification to support
various legal positions, including efforts to exclude certain evidence from

the formal basis that the settlement of individual liability claims was a matter entirely
between the official and the plaintiff. Id. at 5-6. Notably, the submission said nothing
about the possible use of the Judgment Fund as a source of pre-trial settlement
authority, despite the fact (as we have seen) that the Department often settles Bivens
claims before trial by transforming them into claims against the government under the
Judgment Fund.
192. 28 C.F.R. § 50.15(c)(1)-(4); U.S. DEP’T OF JUSTICE, supra note 188, § 4-5.412.
193. We note that this is not a concern about court challenges brought by disappointed
federal employees denied indemnification. Courts have held that decisions to decline to
represent Department of Justice employees (and implicitly to indemnify) are not
reviewable. See, e.g., Fishman v. Washington-Adduci, No. 2:13-cv-04729, 2017 WL
3319107, at *4 (C.D. Cal. Aug. 3, 2017) (collecting cases holding that decisions under 28
C.F.R. § 50.15 are unreviewable and within the absolute discretion of the Department
of Justice).
194. Mary Hampton Mason, You Mean I Can Be Sued? An Overview of Defending Federal
Employees in Individual Capacity Civil Suits, U.S. ATTORNEYS’ BULL., July 2002, at 1, 4.

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trial,195 to stay proceedings,196 to require personal service,197 to argue against
personal jurisdiction,198 and, most pointedly, to deny a Bivens remedy
altogether.199
195. See, e.g., Molina v. Perez, No. 6:13-cv-01025, 2015 WL 249024, at *4-5 (D. Kan. Jan. 20,

196.

197.
198.

199.

2015) (granting motion in limine on indemnification issue); Defendant DEA Special
Agent Robert Cross’s Motion In Limine to Preclude Any Testimony or Reference at
Trial to Indemnification or to His Defense Counsel or Defendant Cross as “The
Government” at 3, Webb v. United States, No. 1:07-cv-03290 (N.D. Ohio Feb. 13, 2017),
ECF No. 263; Notice of Motion in Limine to Exclude Reference to Possible
Indemnification of Defendants by U.S. Department of Justice; Memorandum of Points
& Authorities at 1, Bennett v. Dhaliwal, No. 2:14-cv-04697 (C.D. Cal. Sept. 18, 2015),
ECF No. 57.
See, e.g., Defendants’ Memorandum in Opposition to Plaintiff ’s Motion for Leave to
Amend & Defendant’s Memorandum in Support of Cross-Motion to Stay Proceedings
Pending Appeal at 7, Martin v. Naval Criminal Investigative Serv., No. 3:10-cv-01879
(S.D. Cal. Jan. 30, 2012), ECF No. 54.
See, e.g., Cochran v. Barnes, No. 2:08-cv-00358, 2010 WL 455510, at *2 (N.D. Ind. Feb. 1,
2010).
In Fiore v. Walden, the Ninth Circuit found personal jurisdiction over the Bivens defendant
proper, in part because the U.S. Attorney’s Office was available to defend cases brought
against federal officials. 688 F.3d 558, 583-84, 588 (9th Cir. 2012) (noting that the burden
on the defendant was slight because he was represented by “the world’s largest law
firm” (internal quotation marks omitted)), rev’d, 134 S. Ct. 1115 (2014). In the Supreme
Court, Walden and his amici rebutted this by pointing to the personal nature of Bivens
litigation and the uncertain scope of indemnification. Brief for Petitioner at 36-37,
Walden v. Fiore, 134 S. Ct. 1115 (2014) (No. 12-574), 2013 WL 2390244 (noting that the
suit threatened the petitioner’s “personal finances”); Brief for Federal Law Enforcement
Officers Ass’n as Amicus Curiae Supporting Petitioner at 11-12, Walden, 134 S. Ct. 1115
(No. 12-574), 2013 WL 2445025 (noting that indemnification is uncertain); Brief for the
United States as Amicus Curiae Supporting Petitioner at 19-20, Walden, 134 S. Ct. 115
(No. 12-574), 2013 WL 2445027 (noting that representation and indemnification in
Bivens claims are “discretionary”).
See, e.g., Brief for the Petitioners at 47, Ashcroft v. Iqbal, 556 U.S. 662 (2008) (No. 071015), 2008 WL 4063957 (relying on the prospect of personal liability to argue against
supervisory Bivens claims based on constructive knowledge of wrongdoing); Brief for
the Petitioners at 12, Wilkie v. Robbins, 551 U.S. 537 (2007) (No. 06-219), 2007 WL
128587 (referring to “threat of personal liability” from Bivens actions); Schweiker
Petitioners’ Reply Brief, supra note 185, at 16 (referring to “the devastating potential
liability” facing Bivens defendants); Schweiker Petitioners’ Brief, supra note 184, at 47-48
(arguing against a Bivens remedy because of “ruinous personal liability”); Supplemental
Brief for the Appellees at 38-39, Koprowski v. Baker, 822 F.3d 248 (6th Cir. 2016)
(No. 14-5451) (arguing against the creation of a Bivens remedy because the “threat of
personal liability” would lead to difficulty in recruiting qualified candidates); Arar
Replacement Brief for Ashcroft, supra note 185, at 43 (arguing that recognizing a Bivens
claim “would put at personal risk the officials involved in making the most sensitive
and important decisions facing the nation” (emphasis added)); Defendant Robert
Buchan’s Motion to Dismiss & Memorandum in Support Thereof at 8, Engel v. Buchan,
No. 1:10-cv-03288 (N.D. Ill. Aug. 16, 2010), ECF No. 39 (arguing against a Bivens remedy
because of “over-deterrence” caused by the risk of substantial damages award “for
which a government employee has no realistic ability to pay”).

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Similar strategic considerations might explain why government attorneys
insist on settling some meritorious Bivens claims as FTCA claims, even when
no viable FTCA claim has been or can be asserted.200 Seen from a system-wide
perspective, such practices may obscure the existence of viable Bivens claims
and prop up a commonly shared perception that Bivens claims rarely succeed.
Judges make such skeptical claims about the merits, often citing statistics
provided by Department of Justice attorneys as support.201 If they rarely
succeed, Bivens claims may appear to do little more than burden federal dockets
with insubstantial matters. Such perceptions may underscore judicial
reluctance to extend the doctrine to new forms of constitutional litigation,202 a
reluctance very much present in the Ziglar decision. At a more practical level,
settling cases through the FTCA may enable individual defendants to claim in
subsequent litigation that, although they have been sued before, they have
never paid a judgment or a settlement, obscuring the extent to which the
defendant may have engaged in past unconstitutional conduct.
Whatever the reasons for the government’s descriptions of the financial
threats faced by individual BOP employees, this study reveals those threats to
be largely unfounded. To the extent the Department of Justice’s
representations about financial risk encourage plaintiffs to settle cases at a
discount or influence judicial perceptions of the Bivens doctrine in general or of
its application to particular claims, the Bivens remedy may be undermined for
reasons that have little relationship to reality.
D. Payment Practices, Transparency, and Congressional Oversight of the
Judgment Fund
The payment practices revealed in our data also pose questions for
Congress, as the institution responsible for proper stewardship of the public
fisc and for oversight of payments from the Judgment Fund. Congress has not
accepted liability on behalf of the government for constitutional torts
committed by federal employees. The FTCA applies to garden-variety torts
defined as such in the law of the state where the injury occurred, but does not

200. See supra Part II.B.3. Notably, the right to trial by jury on a Bivens claim may encourage

government attorneys to discuss settlement. Given the Department’s indemnity policy,
which prohibits the pre-verdict indemnification of personal capacity defendants, the
FTCA provides the only available source of funds for pretrial resolution of the claims.
201. One of us has written extensively about this attitude. See Reinert, supra note 9, at 82728 & nn.94-99.
202. As one example, see Crawford-El v. Britton, 93 F.3d 813, 838 (D.C. Cir. 1996) (en banc)
(Silberman, J., concurring) (citing Department of Justice statistics regarding the success
of Bivens claims and concluding that “[o]bviously, the vast majority of these suits are
meritless”), vacated, 523 U.S. 574 (1998).

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apply to claims based on the Constitution.203 Yet we find that, in cases where
the plaintiff brought meritorious claims implicating the Bivens doctrine,
government attorneys regularly arranged to have those claims resolved—
explicitly or informally—as claims brought under the FTCA.
As Part II demonstrates, cases in our dataset were resolved as FTCA claims
even when there were clear barriers to proceeding with FTCA settlements.204
The Supreme Court held in 1993 that a claimant’s failure to exhaust
administrative remedies will bar an FTCA claim.205 Along similar lines, courts
have held that the failure to file an administrative claim with the appropriate
agency bars a federal court from exercising subject matter jurisdiction over an
FTCA claim.206 Yet in at least thirteen Bivens cases in our dataset, plaintiffs
203. While the FTCA provides for the imposition of vicarious tort liability on the federal

government for the torts of its officers and employees, the FTCA makes no provision
for the assertion of claims under federal constitutional or statutory law. See FDIC v.
Meyer, 510 U.S. 471, 478 (1994) (noting that, under the FTCA, state law provides the
source of substantive liability and explaining that the FTCA does not apply where
federal law provides the rule of decision). Indeed, when Congress expanded the FTCA
to accept liability for intentional torts committed by law enforcement officers in 1974,
and immunized federal officials for common law torts in 1988, it acted to preserve
rather than displace the Bivens suit for constitutional tort claims. See Pfander &
Baltmanis, supra note 10, at 132-38.
204. See supra notes 120-37 and accompanying text
205. McNeil v. United States, 508 U.S. 106, 113 (1993). The FTCA framework at issue in McNeil
requires exhaustion through submission to an agency and then requires claimants to
file in court within six months of the conclusion of the administrative process. See 28
U.S.C. § 2401(b) (2018) (barring suit unless filed within six months of the agency’s
denial); id. § 2675(a) (requiring exhaustion). For doubts as to the jurisdictionality of the
litigation bar in McNeil, see SISK, supra note 10, at 112-13. Whether McNeil ’s holding is
better understood as making exhaustion jurisdictional or treating it as a claimprocessing rule, lower courts have generally treated McNeil as a holding bearing on
subject matter jurisdiction. See, e.g., George v. E. Orange Hous. Auth., 687 F. App’x 122,
124 (3d Cir. 2017) (per curiam) (stating that a “post-suit attempt to pursue administrative
remedies did not give the District Court subject matter jurisdiction to hear [plaintiff’s]
FTCA claim”); Mader v. United States, 654 F.3d 794, 807 (8th Cir. 2011) (en banc)
(acknowledging that the McNeil Court did not use the word “jurisdiction,” but reading
the exhaustion requirement as necessary to invoke district court jurisdiction);
Rasul v. Myers, 563 F.3d 527, 528 n.1 (D.C. Cir. 2009) (per curiam) (treating the failure
to exhaust as a jurisdictional bar after McNeil); Turner ex rel. Turner v. United States,
514 F.3d 1194, 1202 n.5 (11th Cir. 2008) (treating McNeil as a jurisdictional holding);
Siemientkowski v. Moreland Homes, Inc., 25 F. App’x 415, 416 (6th Cir. 2002) (same);
Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000) (same); Duplan v. Harper, 188
F.3d 1195, 1199 (10th Cir. 1999) (same); cf. Acosta v. U.S. Marshals Serv., 445 F.3d 509,
513 (1st Cir. 2006) (citing First Circuit precedent for the same proposition); Kokotis v.
U.S. Postal Serv., 223 F.3d 275, 278-79 (4th Cir. 2000) (requiring exhaustion for district
court jurisdiction). But see Glade ex rel. Lundskow v. United States, 692 F.3d 718, 723
(7th Cir. 2012) (treating the requirement as a claims-processing rule).
206. Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003) (“[T]he requirement that the
appropriate federal agency act on a claim before suit can be brought is jurisdictional
and cannot be waived.”); Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 720
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amended their complaints to add FTCA claims without any indication that
they had administratively exhausted their claims.207 In another nineteen cases
in our dataset, settlements in Bivens cases were styled as made under the FTCA
even though the plaintiff had never alleged an FTCA claim and there was no
indication that an administrative claim ever was filed with any agency, let
alone with the BOP.208 And in at least five Bivens cases, the settlements were
styled as made under the FTCA even though the plaintiff’s FTCA claim had
previously been dismissed.209
Additionally, in as many as thirty-two of the cases in which evidence of
administrative exhaustion was lacking, plaintiffs also appear to have amended
their Bivens case to add an FTCA claim—or settled their Bivens claim as an
FTCA claim—outside the applicable statutes of limitations.210 The Supreme

207.
208.
209.
210.

(2d Cir. 1998) (stating that the claim must have been presented to the appropriate
agency in writing and for a sum certain). This exhaustion requirement “has been
viewed as ‘a non-waivable jurisdictional requirement’ limiting the suit to claims fairly
made to the agency.” Acosta, 445 F.3d at 513 (quoting Santiago-Ramirez v. Sec’y of Dep’t
of Def., 984 F.2d 16, 18, 19-20 (1993)); see also Brooks v. Silva, No. 13-6539, 2015 WL
12762112, at *2 (6th Cir. Apr. 6, 2015) (relying on First and Fourth Circuit cases to
conclude that exhaustion was jurisdictional); Ali v. Rumsfeld, 649 F.3d 762, 775 (D.C.
Cir. 2011) (providing that failure to exhaust is jurisdictional); Daniels v. United States,
135 F. App’x 900, 901 (8th Cir. 2005) (per curiam) (providing that presentment of a
claim to an agency is a jurisdictional prerequisite); Joelson v. United States, 86 F.3d
1413, 1422 (6th Cir. 1996) (“Because Joelson does not allege that he has filed an
administrative claim, he has not satisfied the jurisdictional prerequisite to obtaining
judicial review under the Federal Tort Claims Act, and the district court properly
dismissed this claim.”). Of all of the circuits, only the Seventh Circuit has questioned the
near-unanimous view that satisfaction of the FTCA’s exhaustion requirement is
jurisdictional. See Lundskow, 692 F.3d at 723 (holding that the exhaustion requirement is
not jurisdictional and may be waived). Numerous courts of appeals have held that the
exhaustion requirement cannot be waived. See, e.g., D.L. ex rel. Junio v. Vassilev, 858
F.3d 1242, 1244 (9th Cir. 2017); Estate of Cummings v. United States, 651 F. App’x 822,
828 (10th Cir. 2016) (distinguishing between time of filing requirements, which after
United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015), may be waived, and the
exhaustion requirement itself, which cannot); Shelton v. Bledsoe, 775 F.3d 554, 569 (3d
Cir. 2015); Acosta, 445 F.3d at 513; Celestine v. Mount Vernon Neighborhood Health
Ctr., 403 F.3d 76, 82 (2d Cir. 2005) (noting that the FTCA exhaustion requirement “is
jurisdictional and cannot be waived”).
See supra notes 120-33 and accompanying text.
See supra notes 135-37 and accompanying text.
See supra notes 127-33 and accompanying text.
The FTCA has a two-year statute of limitations for presenting a claim to the relevant
agency, and a six-month deadline for filing in federal court after rejection of a claim
filed with the agency. See 28 U.S.C. § 2401(b) (barring suit unless the claim is presented
to the relevant agency within two years after accrual and the suit is filed within six
months of the agency’s denial). These limitations are subject to equitable tolling, and in
at least one case in our dataset the court allowed equitable tolling for the plaintiff ’s
FTCA claim. See Hoslett v. Dhaliwal, No. 3:11-cv-00674, 2013 WL 5947253, at *3 (D. Or.
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Court recently held that the FTCA’s statutes of limitations were not
jurisdictional and were subject to equitable tolling (and therefore were
presumably subject to waiver by the government).211 Before 2015, however,
the courts of appeals were divided with some holding these time limitations
were jurisdictional and therefore not subject to waiver.212 Some lower courts
in our dataset nonetheless routinely accepted complaints that were filed
without satisfying FTCA’s exhaustion requirement in a timely fashion (or at
all). Some such filings occurred in districts at a time when controlling circuit
authority held that the plaintiff’s failure to satisfy these preconditions to suit
deprived the district court of subject matter jurisdiction.213
To summarize, in almost 19% of the Bivens cases in our dataset, FTCA
claims were added during the course of litigation and settlement without any
finding that exhaustion and/or statute of limitations requirements had been
satisfied.214 We can readily imagine why plaintiffs would be willing to
overlook these deficiencies—presumably they are eager to be compensated and
are less particular about the pot of government money from which the
payment comes. But we find it more difficult to understand why attorneys for
the government would arrange,215 and why courts would agree to approve,
settlements in which the parties have amended their lawsuits to invoke the
FTCA and to thereby trigger the payment of Bivens claims through the
Judgment Fund.

211.
212.

213.

214.
215.

Nov. 6, 2013). It appears that these statute of limitations requirements were not
followed in the cases described above in notes 120-33.
Kwai Fun Wong, 135 S. Ct. at 1638.
Compare, e.g., Alexander v. United States, 646 F.3d 185, 190-91 (5th Cir. 2011) (per
curiam) (stating that equitable tolling is not available), abrogated by Kwai Fun Wong, 135
S. Ct. 1638, and Leonhard v. United States, 633 F.2d 599, 624 (2d Cir. 1980) (stating that
courts lack jurisdiction where claims were presented to an agency more than two years
after accrual), with, e.g., Arteaga v. United States, 711 F.3d 828, 832-33 (7th Cir. 2013)
(stating that equitable tolling is allowed).
For example, the Third Circuit permitted equitable tolling of the FTCA’s limitations
period in extremely narrow circumstances, see Santos ex rel. Beato v. United States, 559
F.3d 189, 197 (3d Cir. 2009), but several cases were settled as FTCA claims in the Third
Circuit that would not have met these requirements, see Williams v. Warmerdorf,
No. 3:07-cv-01283 (M.D. Pa. 2007); supra notes 121-23 and accompanying text
(discussing Johnson v. Martinez, No. 2:04-cv-01967 (E.D. Pa.)). The Tenth Circuit did not
allow any equitable tolling and treated the FTCA’s time limitations as jurisdictional, see
Barnes v. United States, 776 F.3d 1134, 1148 (10th Cir. 2015), yet cases in our dataset
were settled as FTCA claims in the circuit even though they did not satisfy these
jurisdictional requirements, see supra notes 124-26 and accompanying text (discussing
Stine v. Allred, No. 1:11-cv-00109 (D. Colo.)); supra note 110 and accompanying text
(discussing Shannon v. Federal Bureau of Prisons, No. 1:03-cv-00352 (D. Colo.)).
See supra notes 120-37 and accompanying text.
For discussion of the Department of Justice and BOP attorneys’ possible thought
processes in these matters, see Part III.C above.

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Satisfying Bivens claims through Judgment Fund payments—regardless of
whether they are restyled as FTCA claims—also appears contrary to the
congressionally created remedial regime. Under existing law, no statute
authorizes payment of Bivens claims against individual officers from the
Judgment Fund. If the Bivens claim results in an assessment of liability or a
settlement, there are two options contemplated by existing law: either the
individual officer pays personally (perhaps with the assistance of liability
insurance) or the employee seeks indemnification directly from the agency for
which she works.216 Each agency has different regulations regarding
indemnification—the Department of Justice (where the BOP is found) provides
for indemnification of a settlement or judgment when the conduct is within
the scope of the officer’s employment and when indemnification is “in the
interest of the United States.”217 If an agency agrees to indemnify the employee,
then the funds are paid from the agency’s budget, not from the Judgment
Fund.218 But in none of the settlements that we document here is there any
indication that the BOP paid settlement funds out of its own budget.219
Members of Congress and scholars alike have worried that some executive
branch agencies shift costs to the Judgment Fund that might more properly be
paid from the agency’s own appropriation.220 For example, Congress took a
dim view of the efforts of agencies to arrange for the Judgment Fund to pay the
costs associated with an award of attorney’s fees under the Equal Access to
Justice Act (EAJA).221 Such fees are payable when agencies are adjudged to have
taken indefensible positions in litigation; Congress felt that the agencies should
pay any such fees to force them to internalize the costs associated with their
litigation posture.222 Congress might similarly worry that agencies with access
216. See SISK, supra note 10, at 398-99.
217. 28 C.F.R. § 50.15(c)(1), (2) (2019).
218. See 31 U.S.C. § 1304(a)(3) (2018) (appropriating funds to pay judgments, awards, and

219.

220.

221.
222.

settlements under a series of specified statutes and omitting any reference to Bivens
claims).
It may be that some amount of money was paid through the Judgment Fund and then
repaid by the BOP. See Figley, supra note 17, at 171-73. But there is no indication in the
agreements we were provided that this is occurring.
See id. at 167-75; see also VIVIAN S. CHU & BRIAN T. YEH, CONG. RESEARCH SERV., R42835,
THE JUDGMENT FUND: HISTORY, ADMINISTRATION, AND COMMON USAGE 12-15 (2013),
https://perma.cc/W87R-ABEG (recounting recent legislation that would improve
Judgment Fund transparency and provide for agency reimbursement of the Fund
in appropriate situations). Congress has been considering legislation that would require
the Department of the Treasury to extend its practice of posting Judgment
Fund payment information on a publicly accessible website. See Judgment Fund
Transparency Act of 2017, H.R. 1096, 115th Cong. (2017).
See Figley, supra note 17, at 171-75.
See id.

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to Judgment Fund payments may take too few steps to lessen the magnitude of
Bivens liability. Indeed, the government has argued against extending Bivens to
suits against federal agencies in part because the relevant statutory scheme does
not authorize expenditures of federal funds to satisfy Bivens claims.223
Congress might sensibly share this concern. The Bureau of Prisons’
response to our FOIA request makes clear that the agency collects only
piecemeal information about FTCA and Bivens cases alleging wrongdoing
by their employees.224 Without complete information about these cases—
including the allegations in the cases and the amount paid—the Bureau of
Prisons cannot make informed decisions about how to prevent similar
constitutional violations in the future.225 Perhaps if the BOP or its employees
were financially responsible in more of these cases, they would collect more
comprehensive information and take more care in the future.226
The need for more comprehensive information-gathering brings us to a
larger concern with government transparency. The payment practices
revealed in our data might seem surprising given the narrative of personal
liability that has dominated Bivens literature and jurisprudence. That sense of
223. See Brief for the Federal Deposit Insurance Co. at 25-26, 26 n.20, FDIC v. Meyer, 510 U.S.

471 (1993) (No. 92-741), 1993 WL 348895 (citing 31 U.S.C. § 1304).
224. See supra Part II.C.
225. See generally Schwartz, supra note 147 (arguing that law enforcement agencies that

gather and examine data about lawsuits act to deter misconduct, but not studying the
Bureau of Prisons specifically). One might usefully contrast reporting on the incidence
of Bivens litigation with the elaborate reporting and reimbursement obligations that
Congress imposed on federal agencies in the so-called “No FEAR Act,” the Notification
and Federal Employee Antidiscrimination and Retaliation Act of 2002, Pub. L. No. 107174, 116 Stat. 566 (codified at 25 U.S.C. § 2301 note at 205-08 (2018)). The Act requires
agencies to file annual reports on workplace discrimination of all sorts and to
reimburse the Judgment Fund when whistleblower litigation results in judgments
payable by the United States. Id. §§ 201, 203, 116 Stat. at 569-70. For an account of the
Act’s provisions, see Sarah Wood Borak, Comment, The Legacy of “Deep Throat”: The
Disclosure Process of the Whistleblower Protection Act Amendments of 1994 and the No FEAR
Act of 2002, 59 U. MIAMI L. REV. 617, 650-57 (2005). For a discussion of other statutes that
resemble the reimbursement features of the No FEAR Act, see Stern, supra note 177,
at 656-57 (describing the Contract Disputes Act, the Stored Communications Act,
and the Foreign Intelligence Surveillance Act as including provisions for agency
reimbursement of the Judgment Fund).
226. See Schwartz, supra note 177 at 1195-96 (arguing that increased financial effects of
lawsuits on agencies would encourage accountability within the agencies). We find it
ironic, in light of the practices disclosed, that the Supreme Court has repeatedly
invoked the need for deference to Congress as a basis for refusing to vindicate
constitutional rights in Bivens-type actions. In many of the settlements we document in
this study, the government has seemingly paid little heed to congressional expectations
about the relationship between Bivens, FTCA, and the Judgment Fund. See supra
Part III.B; see also Reinert & Mulligan, supra note 34, at 1501-04 (arguing that the
remedial framework governing § 1983 actions and the FTCA demonstrates that Bivens
claims should be allowed against both private and public employees).

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surprise no doubt reflects a failure on the part of responsible government
institutions to report on the nature and extent of Bivens liability. We know of
no report that informs the public of the genuine success rates for Bivens
litigation, the frequency with which particular agencies commit actionable
constitutional violations, the amount of and sources from which agencies draw
the money needed to pay off meritorious claims, and the steps agencies have
taken to lessen the likelihood of constitutional violations in the future. As a
result, both Congress and the courts lack the information they need to evaluate
the efficacy of constitutional tort litigation.
E. On the Need for Future Research and the Uncertain Future of the
Bivens Action
Partly due to these transparency problems and partly due to the narrow
collection of litigation files we obtained through our FOIA requests, we cannot
provide a complete picture of Bivens payment practices. To be sure, BOP
employees are responsible for the lion’s share of Bivens claims against federal
government actors.227 But because our data come from a single agency within
the Department of Justice, they limit our ability to speak more broadly. We
know that other agencies within the Department defend Bivens claims and
suspect that they follow the practice we identify here of repackaging the viable
claims for settlement and payment under the FTCA.228 Still, our data do not
shed definitive light on those practices.
Similarly, while we know that officials working in agencies of the federal
government outside the Department of Justice have been named in important
Bivens actions, we have yet to secure any information about the payment and
indemnification practices within those agencies.229 In some instances, the
officers sued in such proceedings do not qualify as investigative and law
enforcement officers within the meaning of the FTCA.230 That, in turn, may
227. Reinert, supra note 9, at 837 tbl.2 (reporting that prison claims made up almost half of

all Bivens filings in a five-district study conducted from 2001 to 2003).
228. The Judgment Fund website lists a series of payments made on behalf of other
law enforcement agencies within the Department of Justice, such as the FBI, the
Bureau of Alcohol, Tobacco, and Firearms, and the DEA. Payments from the Judgment
Fund can be searched by visiting https://jfund.fiscal.treasury.gov/jfradSearchWeb/
JFPymtSearchAction.do and entering a date range and federal agency.
229. See, e.g., Wilkie v. Robbins, 551 U.S. 537, 541 (2007) (naming officials in the Bureau of
Land Management); Harlow v. Fitzgerald, 457 U.S. 800, 802 (1982) (naming White
House aides); Butz v. Economou, 438 U.S. 478, 480-82 (1978) (naming officials in the
Department of Agriculture).
230. None of the defendants named in the Bivens suits in note 229 above would qualify as
law enforcement officers, as defined in 28 U.S.C. § 2680(h) (2018). See supra note 42. But
agencies housed in departments outside the Department of Justice do employ a number
of officers who meet that definition. See Pellegrino v. U.S. TSA, 937 F.3d 164, 168 (3d
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make it far more difficult for the agencies in question to restyle claims for
payment through the Judgment Fund. We encourage additional research into
payment practices as policymakers reflect on how best to structure a complex
system of government accountability.
Along with our call for more research, we caution against drawing overly
broad policy conclusions from the data collected here. Some might argue, based
on the payment practices described in Part II, that Bivens liability no longer
plays a distinctive role in our system of accountability, having been displaced
by settlements and payments that almost always occur within the context of
the FTCA. Building on that conclusion, some might encourage the Court to
overturn Bivens, arguing that doing so would pose no grave threat to
constitutional remedies. Such an argument might assume that, so long as the
FTCA remained in place, it would assure adequate remediation for any
wrongdoing on the part of federal officials. Another version of the argument
might emphasize the degree to which common law tort remedies substitute for
viable Bivens claims; so long as the common law framework remains intact,
Bivens may not contribute much on the margins to a system of government
accountability.
Yet these arguments closely resemble those that the government made,
and the Court rejected, in Carlson v. Green, itself a case involving employees of
the BOP.231 We think the reasons Carlson identified in rejecting the argument
that tort liability under the FTCA displaced the Bivens remedy remain sound
today: Constitutional violations deserve special remedial attention, and
common law tort claims brought against the government cannot alone
adequately ensure the protection of constitutional values.232 Moreover, it is
worth noting that the data reflect litigation practice after a Bivens claim has
been resolved—in that light, they may reveal less about the value of Bivens
claims as a mode of accountability than about the strategic decisions of the
parties to such litigation.
Our data support additional bases to conclude the Bivens doctrine plays an
important role. First and foremost, nothing in our data undercuts the
conclusion that Congress has explicitly designed the FTCA to provide a
remedy that supplements, but does not displace, Bivens actions. One should not
confuse the observation that the government has settled cases under the FTCA
Cir. 2019) (en banc) (TSA screeners); Nurse v. United States, 226 F.3d 996, 1002-03 (9th
Cir. 2000) (customs agents); Celestine v. United States, 841 F.2d 851, 852-53 (8th Cir.
1988) (per curiam) (VA hospital security guards); Caban v. United States, 671 F.2d 1230,
1234 (2d Cir. 1982) (INS agents).
231. See supra notes 45-50 and accompanying text (describing Carlson, 446 U.S. 14 (1980)).
232. Cf. Fallon, supra note 150, at 988-89 (reading the Westfall Act as contemplating the
continued viability of Bivens claims, notwithstanding the existence of a remedy under
the FTCA).

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for its own convenience with the conclusion that, absent the Bivens doctrine,
the FTCA would have provided the same remedy or any remedy at all. Even
within the Bureau of Prisons, our data suggest that Bivens continues to do some
independent work in fostering the assertion and settlement of viable claims; it
is otherwise difficult to explain why the United States would agree to settle
cases through the FTCA (despite substantial barriers to recovery) in exchange
for the plaintiff’s agreement to dismiss a Bivens claim. And we do not know
how the litigation of these cases was influenced, if at all, by the federal
government’s stated position that it rarely if ever provides indemnification for
individual officers in Bivens litigation.233
What’s more, our understanding of the Department of Justice’s approach
to the practice of indemnification suggests that the Department itself
maintains an institutional interest in preserving the prospect of personal
liability (however theoretical), perhaps as a way to encourage its employees to
respect constitutional boundaries.234 Instead of offering a promise or assurance
of indemnity, the Department of Justice offers employees only the opportunity
to petition for indemnification after an adverse verdict or award has been
entered. That enables government attorneys to retain negotiating leverage
with employee defendants who have engaged in particularly egregious forms
of misconduct: Assistant United States Attorneys might plausibly demand a
monetary contribution from the employee during settlement negotiations by
threatening to deny indemnity in the event a Bivens claim were to proceed to
trial.235 We raise these as theoretical possibilities to explain why the Department
might be invested in maintaining the myth of individual liability—our data
cannot evaluate the extent to which individual officers adjust their behavior
based on their belief that indemnification is not guaranteed.
That the Department of Justice might see value in preserving a (modest)
threat of Bivens personal liability through its rule of delayed and uncertain
indemnification tells us much about the relative competence of courts and
executive agencies in determining where the ultimate burden of government
233. See 28 C.F.R. § 50.15(c)(1)-(4) (2019) (permitting indemnification upon request, but stating

that “[a]bsent exceptional circumstances,” the Department of Justice will not “entertain
a request either to agree to indemnify or to settle a personal damages claim before
entry of an adverse verdict, judgment, or award”); U.S. DEP’T OF JUSTICE, supra note 188,
§ 4-5.412 (noting that “there is no right to compel indemnification” and that “[p]rejudgment indemnification is disfavored . . . and is not available except in rare and
extraordinarily compelling circumstances”). We note that in all of the cases we reviewed
in which a Bivens claim remained in the case, the plaintiffs prevailed through
settlements and the settlements occurred in the absence of an adverse judgment.
234. Economic theory predicts that employers and employees will negotiate over the
incidence of liability for on-the-job torts. See Sykes, supra note 175, at 565-66.
235. Although we cannot know for sure, such threats may have played a role in officers’
contributions to settlements in our dataset. See supra Part II.A.

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liability should fall. For much of the nineteenth century, federal courts took no
part in such calculations; the judicial task was limited to the determination as
to whether the official defendant had violated the law and, if so, what sort of
recompense was appropriate.236 Courts eschewed the business of protecting
government officials, however well-meaning, from financial liability for their
tort-based wrongs and refused to adopt doctrines of qualified immunity.237
That left government officials personally accountable, but with networks of
supportive superior officers and coworkers who could help them navigate the
process of seeking indemnification.238
A similar internal process may accompany the resolution of substantial
Bivens claims today. Importantly, though, that internal process has been
deliberately structured by the Department of Justice, perhaps as a tool of
internal employee control and supervision for use in only the most egregious
cases.239 One can understand why the Department, having for its own
administrative reasons retained an incomplete assurance of indemnification,
would turn around and highlight the threat of personal liability as a rhetorical
justification for narrowing access to Bivens-type remedies. But one has greater
difficulty in understanding why the federal courts would continue to attend to
such rhetorical claims given the practices we have identified here.
Apart from the distinctive contributions that Bivens claims make to the
settlement process within the Department of Justice, a decision to abandon
Bivens would leave many government agencies outside the Department subject
to little prospect of liability for their intentional wrongs. As we have seen, the
FTCA limits the government’s liability to intentional torts committed by
236. For an account of the nineteenth-century model of personal liability and indemnity

through the adoption of a private bill in Congress, see generally Pfander & Hunt, supra
note 9.
237. See, e.g., Mitchell v. Harmony, 54 U.S. (13 How.) 115, 135-37 (1851) (imposing personal
liability on an army officer, despite the Court’s recognition that the officer had played
an important role in a military operation that was “boldly planned and gallantly
executed,” and confirming that courts had no business fashioning rules to protect
officials from liability); Little v. Barreme, 6 U.S. (2 Cranch) 170, 178-79 (1804) (refusing
to protect a naval officer from personal liability, despite the officer’s good faith effort
to carry out the orders of his superior officer).
238. For an account of the process of indemnity and the role of the committee on claims, see
Pfander & Hunt, supra note 9, at 1890-93.
239. As we observed earlier in Part II.A, the conduct in cases in which employees contributed
personal resources to settle viable Bivens claims, though constitutionally significant,
was not necessarily more culpable than that in cases in which employees were held
harmless. Perhaps the decision to insist on employee financial contributions reflects
less the severity of the wrong than the supervisor’s perception of the need to discipline
a repeat offender through the imposition of what operates in effect as a monetary
sanction. In other words, internal BOP personnel practices may inform the decision
whether to hold a particular employee harmless or to insist on personal payments.

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investigative and law enforcement officials; many of the officers in other
agencies fail to qualify as such.240 Similarly, many law enforcement officers
work either along the border or outside the United States; any extraterritorial
injury they inflict would fall outside the FTCA’s coverage.241 Finally, liability
for the torture or unlawful detention of people held in military confinement
might well fall within the FTCA exclusion for the combatant activities of the
armed forces.242 It would make very little sense to argue from our data that the
Court should deny access to a Bivens action in those areas of government
activity where the FTCA does not apply and where official liability for
constitutional torts likely serves as the only mode of redress for the victims of
wrongful conduct.
Yet in its most recent Bivens decision, the Supreme Court took precisely
that approach. In Hernandez v. Mesa, the Court refused to recognize a Bivens
remedy for the cross-border shooting of an unarmed Mexican teenager by a
Border Patrol officer.243 Had the death occurred in the United States, it would
have fallen within the original search-and-seizure Bivens context. But because
the teenager was across the border in Mexico, this new context led the Court
to apply its restrictive special factors analysis in assessing the claim’s
viability.244 The Court acknowledged that the FTCA and other potentially
applicable remedies did not apply to the claim in question, which arose from
injuries sustained outside the formal boundaries of the United States and thus
triggered the FTCA’s foreign country exception.245 But rather than treating
the FTCA’s inapplicability as a gap in the system of remedies that a Bivens
action might well help to fill, the Court viewed congressional silence as part of
a consistent refusal to “authorize the award of damages for injury inflicted
outside our borders.”246

240. For an account of the virtual immunity of the federal government and its officers from

241.
242.

243.
244.
245.

246.

tort or other liability in cases of assault and battery that arise outside the law enforcement
context, see SISK, supra note 10, at 165-66, 170-72 (describing the intentional tort exception
and the narrow law-enforcement proviso to that exception).
See 28 U.S.C. § 2680(k) (2018).
For the FTCA exclusion for “combatant activities of the military or naval forces,” see
28 U.S.C. § 2680(j). Courts have adopted a relatively broad interpretation of the term
combatant activities. See, e.g., In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 351 (4th Cir.
2014) (concluding that a contractor who provided water treatment and trash disposal
at military bases in Iraq and Afghanistan was engaged in combatant activities).
140 S. Ct. 735, 739 (2020).
Id. at 743-47.
Id. at 748 & n.10; see also 28 U.S.C. § 2680(k); Sosa v. Alvarez-Machain, 542 U.S. 692, 712
(2004) (“[T]he FTCA’s foreign country exception bars all claims based on any injury
suffered in a foreign country . . . .”).
Hernandez, 140 S. Ct. at 747.

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Similar conclusions would seemingly apply to cases arising out of the war
on terror in which egregious misconduct has been documented on the part of
U.S. officials. In Arar v. Ashcroft, for example, U.S. officials subjected a Canadian
citizen to extraordinary rendition and torture based on suspect (at best)
evidence of complicity in terrorist activity.247 The Second Circuit refused to
recognize a Bivens claim, because it presented a new Bivens context and special
factors counseled hesitation.248 Nor could the FTCA provide a remedy (again
due to the foreign country exception). Other courts agree that the overseas
mistreatment of U.S. citizens at the hands of federal officers fails to give rise to
a viable Bivens claim.249
In short, we worry about both the FTCA’s displacement of Bivens-style
deterrence in the areas where the remedies overlap and about the absence of
any remedy at all in new contexts that lie outside the FTCA. In areas that the
FTCA does not cover, a Bivens claim will likely provide the only viable
remedy, but it will be these areas that will be most likely to flunk Ziglar’s new
context test and have to overcome the significant hostility that currently exists
towards extending Bivens claims into new areas (hostility supported in part by
the fiction of the meritless Bivens claim that is undermined by the settlement
patterns we report here).250 For claimants in this category of actions, it truly
will be Bivens or nothing.251 Yet in Ziglar and Hernandez, the Court seems to
have substantially discounted the adequacy of alternative remedies as a factor
in the recognition of new Bivens remedies.
We add one final note to highlight an important issue of system design
that does not necessarily turn on ultimate incidence of Bivens liability. We
discuss here only the comparatively narrow question of who pays when
victims of government wrongdoing allege Bivens claims. While our findings
have important implications for the design of constitutional remedies, they do
not exhaust the factors that inform remedial and system design choices. Even if
remedies were to run entirely against the government, holding individuals
harmless, Bivens litigation could be justified as a way to bolster the lawannouncing capacity of the federal courts.252 For well understood reasons,
247. 585 F.3d 559, 563-66 (2d Cir. 2009) (en banc).
248. Id. at 574-81.
249. See Pfander, supra note 72, at 758-61 (discussing such cases as Vance v. Rumsfeld, 701 F.3d

193 (7th Cir. 2012), and Doe v. Rumsfeld, 683 F.3d 390, 396 (D.C. Cir. 2012), both of which
involved the overseas mistreatment of U.S. citizens at the hands of military officers).
250. For a discussion of this dynamic in one prominent case, see notes 243-46 above.
251. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
410 (1971) (Harlan, J., concurring in the judgment).
252. On the importance of enhancing the ability of the federal courts to give voice to
constitutional norms in the context of Bivens-style litigation, see PFANDER, supra note 51,
at 57-69 (discussing the failure of the federal courts to assess the constitutionality of
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federal courts lack the power to address many questions of constitutional law
in the context of suits for declaratory and injunctive relief. Such law-saying
disabilities seem particularly acute in the context of litigation seeking redress
for overseas constitutional torts, including extraordinary rendition, extended
detention, and cruel and inhumane forms of interrogation.253
Conclusion
Much has changed doctrinally since the Supreme Court first recognized
that individual federal officers were personally liable for their constitutional
torts. While initially welcoming the deterrent effects of such a threat of
personal liability, the Court has lately expressed greater concern with the
problem of overdeterrence. That concern led first to the judicial creation of
immunity doctrines and then to the judicial reluctance to allow victims to seek
redress for constitutional violations. In Ziglar v. Abbasi, the Court prominently
featured the threat of personal liability and a related concern with the burden
of indemnification in its sharply restrictive approach to the recognition of a
federal right to sue. Openly criticizing its earlier decisions as the product of a
benighted “ancien regime,”254 the Court now views the threat of new Bivens
liability as raising concerns of fiscal management that properly call into play
the judgment of the political (rather than the judicial) branches.
In the course of taking this doctrinal turn, the Court has displayed little
interest in knowing who actually pays when constitutional tort claims
succeed. Indeed, the Court has been content to assume that the burden of Bivens
liability falls primarily on individual officers and their employing agencies.
The Department of Justice has actively encouraged those static assumptions,
adopting a restrictive indemnity policy that preserves a nominal threat of
personal exposure and enables Department attorneys to trumpet the threat of
personal liability in opposing new Bivens claims. Nor has the Court displayed
any interest in ascertaining the magnitude of Bivens liability and the nature of
the threat it poses to fiscal stability.
Testing them in this study of successful litigation against the BOP, we find
that the Court’s assumptions about the government’s payment practices do not
hold. Congressional recognition of intentional tort liability under the FTCA
has enabled the Department of Justice to provide individual employees and
such war-on-terror claims as those for extraordinary rendition and enhanced
interrogation directed at U.S. citizens and others).
253. See id. at 61-69 (describing the failure of the federal courts to clarify the law governing
such war-on-terror issues as torture, extraordinary rendition, and military detention
of U.S. citizens).
254. Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017) (quoting Alexander v. Sandoval, 532 U.S.
275, 287 (2001)).

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responsible agencies a virtually airtight assurance against any constitutional
tort liability. The Department has done so by treating viable Bivens claims as
payable under the FTCA and the Judgment Fund. Our study reveals that more
than 95% of the successful Bivens claims brought against employees of the
Bureau of Prisons over a ten-year period were resolved in such a manner. The
BOP itself, apparently, was never called upon to pay successful claims
(although internal Department of Justice protocols might conceivably lead to
other modes of agency accountability). The Court’s hostility to Bivens litigation
rests on the perception that individual officers pay successful claims, a practice
that may have been common during the “ancien regime” when Bivens was
decided, but one that has been superseded by the Judgment Fund payment
practices we document here.
Aside from casting doubt on bedrock judicial assumptions about the
incidence of liability, our study has important implications for the future of
constitutional tort litigation. The data reported here call into serious doubt the
Court’s reliance on an almost nonexistent threat of personal liability as a
justification for constricting the scope of Bivens remedies. This study similarly
undermines the Court’s associated reluctance to extend Bivens remedies to new
categories, where the need for constitutional redress may be especially acute.
Finally, this Article calls into question whether the sums involved in the cases
we have reviewed pose a threat to fiscal stability sufficiently grave to justify
the Court’s apparent judgment that extending Bivens liability will henceforth
almost always require explicit congressional approval. Awards of the kind
reflected in our data can provide important redress to the victims of
constitutional violations without posing anything more than a negligible
threat to the public fisc.

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Appendix A: Methodology
This Appendix provides additional information about our study
methodology. We first submitted a Freedom of Information Act (FOIA) request
to the Federal Bureau of Prisons (BOP), seeking records reflecting all lawsuits
brought against the BOP and/or its officers and agents that resulted in a
settlement or plaintiff’s judgment between January 1, 2009 and December 31,
2014, the amount of the payments in each case, and information about whether
individual federal employees or the BOP contributed to any of these
settlements and judgments.255 The BOP responded to our FOIA request by
providing what it described as “the litigation records” of cases that resulted in a
payment of $1000 or more over a ten-year period.256 Included in their first
production of records were 9277 pages, 7796 of which they released to us with
minimal or no redaction. After subsequent discussions, we were provided with
an additional 920 pages of litigation documents, 856 pages of which had
minimal redactions.257 The BOP provided us with 216 separate case files, but
we later concluded—with agreement by the BOP—that some of those files were
not responsive to our request. By our count, the BOP provided us with files
regarding 209 cases with payments of $1000 or more to plaintiffs that were
resolved between 2007 and 2017.258
The BOP’s response, while helpful, was incomplete.259 While the BOP
provided us with documents regarding each of these 209 cases, the records did
255. We submitted similar requests to the FBI and the Department of Justice, but they did

not agree to provide us with information in response to our requests.
256. Letter from Ian M. Guy, Supervisory Attorney, U.S. Fed. Bureau of Prisons, to Joanna

C. Schwartz, Professor of Law, UCLA Sch. of Law (Apr. 19, 2017) (on file with authors).
The parameters of their production were different from the parameters of our request
because these records had been compiled and produced in response to another, similar
FOIA request. See Email from Ronald L. Rodgers, Senior Counsel, Information &
Remedies Processing Branch, Office of Gen. Counsel, Fed. Bureau of Prisons, to Joanna
C. Schwartz, Professor of Law, UCLA Sch. of Law (Oct. 22, 2018, 11:12 AM) (on file
with authors).
257. In this subsequent production, the BOP additionally provided us with files of “tort” and
“labor” cases that were resolved without litigation. Because these claims were resolved
administratively, and without naming individual officers, we have not included them
in this study.
258. In the course of our research, we found another 31 cases that relate in some way to the
216 case files produced by the BOP. When two cases were treated by the court and
parties as related and resolved through one disposition, we coded them as a single case.
259. When we followed up to ask about these gaps in the case files, our contact at the
Bureau of Prisons explained that
BOP attorneys do not represent the agency in litigation or even in negotiating a settlement of a
claim—such representation is provided by the Civil Division of the appropriate U.S. Attorney’s
Office, and it seems that often a final copy of a settlement agreement is not returned to the BOP
attorneys with whom the various Assistant United States Attorneys liaise.

Letter from Ian M. Guy to Joanna Schwartz, supra note 143.

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not always answer the empirical questions we have posed. For example, the
BOP did not provide settlement agreements for many of the cases, making it
impossible to confirm whether individual officers contributed to the
settlements. The BOP also did not provide us with the complaints filed or other
information about the underlying causes of actions in several cases, making it
difficult to discern whether the plaintiffs brought Bivens claims in each of these
cases.260 And the BOP’s files contained some—but not all—motions and
opinions in these cases, offering an incomplete picture of the course of
litigation in these cases.
To secure missing information on the cases, we looked to other sources.
We began by reviewing the dockets of each of these 209 cases and by pulling
relevant complaints, motions, settlement agreements, and court orders.261 We
also contacted plaintiffs’ and defense attorneys who entered appearances in
these cases when the FOIA materials and electronic dockets provided
insufficient information about the dynamics of litigation or terms of
settlement in these cases. Having supplemented the BOP’s records, we coded
the 209 cases for multiple variables including whether the plaintiff proceeded
pro se or with counsel, the date and district in which the case was filed, the
nature of the claim and injury, the date the case was closed, and the amount
paid to plaintiffs.
In an effort to ensure coding accuracy and consistency, one of us
undertook the initial coding of all 209 files. Another of us reviewed
approximately 20% of those files, focusing on files where the coding decisions
were less obvious. We paid particular attention to what claims were included
in the initial complaint—claims brought under the Federal Tort Claims Act
(FTCA), FOIA, Bivens, or some other theory of liability—what claims remained
in the case at the time it was resolved, and the mechanisms by which the causes
of action shifted during the course of litigation.
After coding the 209 cases in the BOP’s FOIA production, we focused our
study on the 108 matters in which the plaintiff included Bivens claims at some
point during the course of litigation.262 We based our decision to include or
exclude specific cases on a careful examination of the allegations in the initial
and amended complaints as the case evolved from initial filing to resolution.
Most of these excluded claims (97 of the 101 non-Bivens cases) were filed and
resolved under the FTCA. In these cases, the plaintiff did not seek to impose
liability on individual officers under the Bivens doctrine at any point during
260. Incarcerated people can bring other types of claims, including claims under the FTCA

and FOIA, directly against the U.S. government for conduct by BOP officials.
261. We relied on the federal courts’ Public Access to Court Electronic Records (PACER)

system as well as Bloomberg Law to review dockets.
262. We report more fully on those cases in the main body of the Article.

624

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the course of litigation. The remaining four excluded non-Bivens cases were
brought under FOIA, which does not make damages available to successful
litigants.
In an effort to confirm that the Bivens case information produced by the
BOP was comprehensive and representative, we conducted a follow-up
assessment using electronic docket records aggregated by Bloomberg Law. We
searched the files of cases initiated between 2005 and 2014, seeking to identify
all cases asserting Bivens claims against BOP employees in which a settlement
or plaintiff’s judgment was reached. Having identified successful claims, we
compared our list to the list of cases disclosed by the BOP. We found sixtythree additional Bivens cases that were not included in the BOP’s FOIA files (all
but one involved a settlement). We then submitted additional FOIA requests to
the BOP to gather additional information about the sixty-three cases we
uncovered.
There remain some gaps in our information about the 171 cases in the
dataset. The BOP was unable to provide us with information about the amount
of the settlements in eleven cases, and could only approximate the settlement
amounts in another eight cases. Accordingly, we do not know the total amount
plaintiffs recovered in these 171 cases, but know that they received more than
$18,975,629. The BOP was also unable to locate and/or produce settlement
agreements in sixty of the cases in the dataset, so we do not always know
exactly how the parties framed their agreements—relevant particularly when
the plaintiff had agreed to substitute FTCA claims for the Bivens claims in some
manner.
Despite these limitations, the BOP production and our own compilation
provide an apparently comprehensive and reliable portrait of successful Bivens
cases brought against the BOP.263 The BOP production reveals the nature of the
claims asserted, the manner in which the claims were resolved, and the source
of funds that were paid to plaintiffs. Similar claim and payment information
appears in claims we identified in our separate review of files from the
specified ten-year period. Thus, while the BOP limited its production to
settlements of $1000 or more, we found similar practices in the cases where less
than $1000 was paid. Similarly, the BOP’s production was limited to cases in
which government attorneys represented the defendants. One might worry
that payment practices in such represented cases could systematically differ
from the practices in cases in which the federal official defendant was not
represented by government counsel.264 By examining all filings in the specified
263. We of course cannot make claims about the settlement and indemnification practices

of other federal agencies.
264. We discuss indemnity policies in Part III, but we do not know what factors inform the

Department of Justice’s discretionary decisions to deny legal representation. We
understand that it may happen in circumstances in which the government agrees with
footnote continued on next page

625

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ten-year period, our review included all Bivens cases, not just those in which
the government agreed to represent the defendant. That we found a similarity
between the payment practices in the BOP production and our own
compilation gives us some confidence that the pattern we identify was not
simply an artifact of the government’s decision to provide legal counsel.

the victim and has criminally prosecuted the official for the misconduct at issue. See
Email from Paul Figley, Prof. of Legal Rhetoric, Wash. Coll. of Law, Am. Univ., to
James E. Pfander, Professor of Law, Nw. Pritzker Sch. of Law (July 21, 2018, 3:24 PM)
(on file with authors). Disclaimers of personal liability representation may be
accompanied by disclaimers of FTCA coverage, perhaps on the theory that the FTCA
does not accept liability for assault and battery or on the theory that particularly
egregious conduct falls outside the scope of employment. See Gregory C. Sisk, Holding
the Federal Government Accountable for Sexual Assault, 104 IOWA L. REV. 731, 777-81 (2019)
(noting the omission of assault and battery claims from FTCA coverage, except when
committed by law enforcement officers, and describing trend in state courts to broaden
the scope of vicarious liability by treating intentional torts as within the scope of
employment).

626

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Appendix B: Data
Contained within this Appendix are the data upon which our discussion is
based. The four tables reflect the four main ways in which Bivens cases in the
dataset were resolved. Table 1 sets out the eight cases in the dataset in which
there was some contribution by individual officers. Tables 2-4 set out the cases
in which individual officers did not contribute, and the ways those Bivens
claims were resolved—through dismissal during litigation (Table 2); through
settlement of Bivens and FTCA claims with the United States assuming the
entire settlement (Table 3); and through formal or informal substitution of
the Bivens claim with an FTCA claim (Table 4). The data are largely selfexplanatory, with one exception: The primary allegations in each case are
denoted through the following abbreviations:













ACCOM (failure to accommodate disability);
COC (conditions of confinement);
COPF (correction officer use of force);
COSA (correction officer sexual assault);
DP (due process violation)
FOOD (food contamination);
FTPPF (failure to protect prisoner from physical force);
FTPSA (failure to protect prisoner from sexual assault);
MED (medical malpractice);
PI (personal injury);
REL (religious discrimination); and
SPEECH (free speech).

627

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Table 1
Cases in Which Officers Contributed to the Payment of Settlements and Judgments

Case Name

Ortiz v. Bezy
2:05-cv-00246

Court

S.D. Ind.

Allegations

MED

Claims at
Filing

Bivens

Claims
Immediately
Before
Resolution

Total
Owed by
Individual
Defendants

Total
Paid
by U.S.

Bivens

$10,000
(possibly
paid by
insurer)

0

0

MonclovaChavez v.
McEachern
1:08-cv-00076

E.D. Cal.

COPF

Bivens

Bivens

$10,000
(though
defendants
defaulted)

Doe v. United
States
1:08-cv-00517

D. Haw.

COSA

Bivens &
FTCA

Bivens &
FTCA

$3000

$67,500

Bolden v.
Marberry
2:09-cv-00312

S.D. Ind.

MED

Bivens

Bivens

Unknown

0

Doe v. United
States
1:12-cv-00640

D. Haw.

COSA

Bivens &
FTCA

Bivens &
FTCA

$25,000

$15,000

Harrison v.
Jackson
1:12-cv-04459

N.D. Ga.

COSA

Bivens &
FTCA

Bivens

$11,000

0

Shirley v.
Manning
3:13-cv-00236

D. Or.

PI

Bivens &
FTCA

Bivens &
FTCA

$1500

$6000

Jones v.
Caraway
2:14-cv-00319

S.D. Ind.

COC

Bivens

Bivens

$662.95

0

$61,162.95

$88,500

Total paid:

628

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Table 2
Cases in Which Bivens Claims Were Dismissed During Litigation

Case Name

Court

Allegations

Reason Bivens
Claims Dismissed

Total Paid
by U.S.

Harmon v. United States
5:00-cv-01072

S.D. W. Va.

PI/MED

Dismissed sua sponte
by court

$2500

Jones v. Reno
5:01-cv-03094

D. Kan.

PI/MED

Dismissed sua sponte
by court

$7500

$40,000

Northington v. Hawk-Sawyer
2:04-cv-01032

C.D. Cal.

MED

Jury found in favor
of individual
defendants on Bivens
claim; in favor of
plaintiff on FTCA
claim

Manning v. U.S. Dep’t of Justice
8:04-cv-01486

D. Md.

PI

Voluntarily
dismissed

$3000

Baker v. United States
1:05-cv-00147

W.D. Pa.

FTPPF/
MED

Dismissed on
MTD/MSJ

$90,000

Gonzalez v. Sanders
2:05-cv-00269

E.D. Ark.

PI/MED

Dismissed on MSJ

$813,000

$1000

Fernandez v. Fed. Bureau of
Prisons
1:05-cv-03288

N.D. Ill.

PI

Defendants’ motion
to substitute United
States for all parties
granted

Clark v. United States
3:06-cv-00016

S.D. Ill.

COPF

Voluntarily
dismissed

$10,049.51

Almashleh v. United States
1:06-cv-00106

W.D. Pa.

MED

Dismissed on MSJ

Unknown

Vandersteen v. Wessberg
0:06-cv-02251

D. Minn.

PI

Dismissed on MTD

$10,000

Murillo v. United States
2:06-cv-06699

C.D. Cal.

MED

Dismissed sua sponte
by court

$75,000

Chess v. United States
1:07-cv-05333

N.D. Ill.

FTPPF

Dismissed on MSJ

$25,000

Aviles v. Levi
2:08-cv-02440

E.D. Pa.

REL/MED

Voluntarily
dismissed

$32,500

629

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The Myth of Personal Liability
72 STAN. L. REV. 561 (2020)

Case Name

Court

Allegations

Reason Bivens
Claims Dismissed

Total Paid
by U.S.

Vincent v. Fed. Bureau of
Prisons
2:08-cv-03286

C.D. Cal.

MED

Voluntarily
dismissed

$250,000

McIntosh v. Glen
1:09-cv-00295

W.D. Pa.

MED

Dismissed on MSJ

$7000

Martinez v. United States
5:09-cv-00375

C.D. Cal.

COPF/
MED

Dismissed on MTD

$1500

$3000

Edenfield v. United States
1:09-cv-01384

N.D. Ga.

PI

Three claims
dismissed on MTD;
two claims dismissed
sua sponte by court

Ford-Sholebo v. United States
1:09-cv-02287

N.D. Ill.

MED

Voluntarily
dismissed

$700,000

Warrender v. Lappon
1:09-cv-02697

E.D.N.Y.

MED

Dismissed on
MTD/MSJ

$1000

Rockett v. United States
1:09-cv-03036

E.D.N.Y.

PI

Dismissed on MSJ

$4000

West v. Peoples
1:09-cv-03328

N.D. Ga.

COPF

Dismissed on MTD

$4500

Duran v. Lindsay
1:09-cv-05238

E.D.N.Y.

MED

Dismissed on
MTD/MSJ

Unknown

Zidell v. Kanan
4:10-cv-00106

N.D. Tex.

MED

Dismissed sua sponte
by court

Unknown

$1500

Barker v. McPherson
2:10-cv-00314

S.D. Ind.

COPF

Bench trial decision
in favor of individual
defendants on Bivens
claim; in favor of
plaintiff on FTCA
claim

Weathington v. United States
1:10-cv-00359

W.D. La.

FTPPF/
COPF/MED

Dismissed on MSJ

$10,000

Irvin v. Owens
9:10-cv-01336

D.S.C.

FTPPF

Dismissed on MSJ

$465,000

Ford v. Mitchell
1:10-cv-01517

D.D.C.

OTHER
(sentencing
error)

Dismissed on MTD

$350,000

630

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The Myth of Personal Liability
72 STAN. L. REV. 561 (2020)

Case Name

Court

Allegations

Reason Bivens
Claims Dismissed

Total Paid
by U.S.

Banks v. United States
1:10-cv-05308

E.D.N.Y.

MED

Voluntarily
dismissed

$100,000

Navarro-Morales v. Lockett
5:11-cv-00245

M.D. Fla.

MED

Voluntarily
dismissed

$400,000

Renner v. Cole
3:11-cv-00419

W.D. Wisc.

MED

Dismissed on MSJ

$150,000

Shuster v. Cabanas
1:11-cv-01764

D.N.J.

MED

Dismissed on
MTD/MSJ

$6250

Fontanez v. Lopez
1:11-cv-02573

D.N.J.

MED

Dismissed sua sponte
by court

$20,000

Williams v. United States
2:11-cv-05612

E.D. Pa.

MED

Voluntarily
dismissed

$575,000

Mohsen v. United States
4:12-cv-00045

D. Ariz.

MED

Dismissed on MSJ

Unknown

Lee v. United States
4:12-cv-00197

N.D. Tex.

COC

Voluntarily
dismissed

$60,000

$2000

Penick v. United States
2:12-cv-00341

S.D. Ind.

MED

Bivens claims against
nineteen named
defendants dismissed
sua sponte by court;
Bivens claims
against two named
defendants dismissed
on MTD/MSJ

Spells v. Fenstermaker
3:12-cv-00455

M.D. Pa.

FOOD

Dismissed sua sponte
by court

Approximately
$12,000

Ruiz v. United States
1:12-cv-00521

D.N.M.

MED

Dismissed on MSJ

$132,500

Legrand v. United States
3:12-cv-00743

M.D. Pa.

FOOD

Dismissed on
MTD/MSJ

$2500

Woods v. Holt
1:12-cv-00900

M.D. Pa.

FOOD

Voluntarily
dismissed

Approximately
$2000

Brown v. Holt
3:12-cv-00956

M.D. Pa.

FOOD

Voluntarily
dismissed

Approximately
$2000

Love v. U.S.P. Canaan
1:12-cv-01030

M.D. Pa.

FOOD

Voluntarily
dismissed

Approximately
$2000

631

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The Myth of Personal Liability
72 STAN. L. REV. 561 (2020)

Case Name

Court

Allegations

Reason Bivens
Claims Dismissed

Total Paid
by U.S.

Strong v. Holt
3:12-cv-01036

M.D. Pa.

FOOD

Voluntarily
dismissed

Approximately
$2000

Connelly v. Holt
1:12-cv-01187

M.D. Pa.

FOOD

Voluntarily
dismissed

Approximately
$2000

Cruz v. United States
5:12-cv-02149

D.S.C.

COPF/PI

Dismissed on MTD

$45,000

Harris v. United States
1:12-cv-02392

M.D. Pa.

FOOD

Dismissed on MTD

Approximately
$1500

M.G. v. United States
3:12-cv-02956

S.D. Cal.

FTPSA

Dismissed on
interlocutory appeal

$50,000

Smith v. United States
3:13-cv-00337

W.D. Tex.

PI/MED

Dismissed on
MTD/MSJ

$150,000

Wakefield v. United States
4:13-cv-00339

N.D. Fla.

FTPPF

Dismissed on MSJ

$20,000

Johnson v. Merritt
2:13-cv-00441

S.D. Ind.

COPF

Voluntarily
dismissed

Unknown

Jackson v. Welliver
3:13-cv-00641

M.D. Pa.

PI

Voluntarily
dismissed

$2850

Hildebrand v. United States
1:13-cv-01233

C.D. Ill.

MED

One claim dismissed
on MTD; one claim
voluntarily dismissed

$57,000

Kontos v. United States
5:13-cv-01398

C.D. Cal.

MED

Voluntarily
dismissed

$199,000

Thornton v. United States
1:14-cv-00447

W.D. La.

MED

Dismissed sua sponte
by court

$7800

Ruffin v. United States
1:14-cv-00761

D.D.C.

MED

Voluntarily
dismissed

$3000

Clemmons v. United States
2:14-cv-00885

N.D. Ala.

MED

Dismissed sua sponte
by court

$2550

Dunbar v. United States
1:14-cv-01838

D. Colo.

FTPPF/
SPEECH

Dismissed on MTD

$30,000

Zepeda-Zalaberry v. Smith
2:14-cv-02738

D. Ariz.

MED

Dismissed sua sponte
by court

$1100

Davis v. United States
2:15-cv-00121

E.D. Ark.

MED

Dismissed sua sponte
by court

$600,000

Total paid:

$5,547,100

632

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The Myth of Personal Liability
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Table 3
Cases in Which Bivens and FTCA Claims Remained at Settlement,
with Payment Only by the U.S. Government

Case Name

Court

Allegations

Settlement
Contingent on
Dismissal of
Bivens Claims
Separate from
Dismissal of
Action

Gil v. Reed
3:00-cv-00724

W.D. Wisc.

MED

Yes

$20,000

Muhannad v. United States
3:00-cv-00864

S.D. Ill.

COPF/REL

Yes

$1205

Kikumura v. Osagie
1:03-cv-00236

D. Colo.

MED

No

$30,000

Fritts v. Zych
5:03-cv-03377

D. Kan.

MED

No

$125,000

Teague v. United States
1:04-cv-01800

D. Colo.

FTPPF

No

$3,000

Oleson v. United States
3:05-cv-00033

W.D. Wisc.

PI

No

$3500

Haas v. Prince
2:05-cv-00112

E.D. Ark.

MED

No

$2360

Ahart v. Willingham
3:05-cv-01016

D. Conn.

MED

No

$400,000

Bramwell v. Murray
1:05-cv-07504

S.D.N.Y.

COPF/MED

No

$50,000

Johnson v. United States
2:06-cv-00006

N.D. W. Va.

MED

No

$30,000

Zepeda v. United States
1:06-cv-00676

D. Haw.

COSA

No

$17,500

Custard v. Turner
1:06-cv-01036

D. Colo.

ACCOM

No

$1400

Burnette v. Fed. Bureau of
Prisons
1:06-cv-01396

W.D. La.

FTPPF

No

$35,000

Total Paid
by U.S.

633

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Case Name

Court

Allegations

Settlement
Contingent on
Dismissal of
Bivens Claims
Separate from
Dismissal of
Action

Yates v. United States
2:06-cv-01876

E.D. Pa.

COSA

No

$246,250

Donaldson v. Samuels
1:06-cv-05627

D.N.J.

COPF

No

$19,000

Dantone v. Winn
4:06-cv-40022

D. Mass.

PI/MED

No

$3000

Ricketts v. Assoc. Warden of
Unicor
1:07-cv-00049

M.D. Pa.

FTPPF

No

$400,000

Lindsey v. Fed. Bureau of
Prisons
4:07-cv-00461

N.D. Tex.

MED

No

$1750

Shaheed v. Nalley
3:07-cv-00679

S.D. Ill.

COPF

No

$48,000

Nolan v. Hamidullah
4:07-cv-01141

D.S.C.

ACCOM

Yes

$14,500

Castaneda v. United States
2:07-cv-07241

C.D. Cal.

MED

No

$1,950,000

Wormley v. United States
1:08-cv-00449

D.D.C.

DP

No

$50,000

Houston v. United States
2:08-cv-01076

C.D. Cal.

COSA

No

$235,000

Albin v. United States
1:08-cv-01271

S.D. W. Va.

MED

No

$985,000

Morris v. Jones
2:08-cv-03842

E.D. Pa.

MED

Yes

$75,000

Magassouba v. United States
1:08-cv-04560

S.D.N.Y.

FTPPF/
COPF/MED

No

$20,000

Howard v. United States
1:09-cv-00096

E.D.N.Y.

COPF/MED

No

$30,000

Ngerntongdee v. United States
2:09-cv-00213

W.D.
Wash.

MED

No

$880,000

Total Paid
by U.S.

634

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The Myth of Personal Liability
72 STAN. L. REV. 561 (2020)

Case Name

Court

Allegations

Settlement
Contingent on
Dismissal of
Bivens Claims
Separate from
Dismissal of
Action

Richardson v. Fed. Bureau of
Prisons
1:09-cv-02082

E.D. Cal.

FTPSA/
MED

No

$2500

Manswell v. United States
1:09-cv-04102

S.D.N.Y.

PI/MED

Yes

$12,500

Lisonbee v. United States
1:10-cv-00058

D. Utah

MED

No

$412,500

Bell v. Zuercher
7:10-cv-00072

E.D. Ky.

MED

No

$975,000

Louis v. United States
5:10-cv-00075

N.D. W. Va.

FTPSA/
FTPPF

No

$15,000

Rigdon v. Carey
5:10-cv-00130

M.D. Fla.

MED

Yes

$3500

Cottini v. United States
2:10-cv-00294

C.D. Cal.

MED

Yes

$200,000

Hensarling v. United States
5:10-cv-00344

M.D. Fla.

FTPPF

No

$62,500

Lichtenberg v. United States
1:10-cv-00353

D. Haw.

MED

No

Unknown

Rappe v. Harvey
1:10-cv-04636

N.D. Ill.

MED

No

$25,000

Fitts v. Malatinsky
2:10-cv-11100

E.D. Mich.

MED

Yes

$15,000

Satterwhite v. Dy
2:11-cv-00528

W.D. Wash.

MED

No

$1,400,000

Brewer v. Fed. Bureau of
Prisons
1:11-cv-00605

E.D.N.Y.

DP

No

$43,000

Hoslett v. Dhaliwal
3:11-cv-00674

D. Or.

MED

No

$15,000

Furtney v. United States
3:11-cv-01090

D. Or.

PI

No

$80,000

Total Paid
by U.S.

635

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The Myth of Personal Liability
72 STAN. L. REV. 561 (2020)

Case Name

Court

Allegations

Settlement
Contingent on
Dismissal of
Bivens Claims
Separate from
Dismissal of
Action

Shelton v. Bledsoe
3:11-cv-01618

M.D. Pa.

FTPPF/
COPF

No

$11,000

Sheridan v. Rios
0:11-cv-02487

D. Minn.

PI/MED

No

$15,000

Vailette v. Lindsay
1:11-cv-03610

E.D.N.Y.

MED

No

$12,000

Words v. United States
2:11-cv-14261

E.D. Mich.

MED

No

$15,000

Brooks v. Bledsoe
3:12-cv-00067

M.D. Pa.

SPEECH

No

$500

Cooper v. United States
5:12-cv-00162

M.D. Fla.

COPF

No

$10,000

Carter v. Moon
5:12-cv-00269

M.D. Fla.

OTHER
(fraud)

No

$5000

Spotts v. Lindsey
3:12-cv-00583

M.D. Pa.

FOOD

No

Approximately
$8000

Lee v. Pfister
5:12-cv-00794

C.D. Cal.

COPF

Yes

$6500

Riopedre v. United States
8:12-cv-02806

D.S.C.

MED

No

$375,000

Clarke v. Fed. Transfer Ctr.
2:13-cv-00026

E.D. Ark.

MED

No

$800,000

Mack v. United States
1:13-cv-00280

M.D. Pa.

FOOD

No

$2000

Hirano v. Williams
5:13-cv-02371

C.D. Cal.

COC

No

$50,000

Hill v. United States
1:13-cv-03404

D. Colo.

FTPSA

Yes

$70,000

Morales v. United States
1:14-cv-00485

E.D.N.Y.

MED

Yes

$52,500

Total Paid
by U.S.

636

Electronic copy available at: https://ssrn.com/abstract=3343800

The Myth of Personal Liability
72 STAN. L. REV. 561 (2020)

Case Name

Court

Allegations

Settlement
Contingent on
Dismissal of
Bivens Claims
Separate from
Dismissal of
Action

Total Paid
by U.S.

$98,300

Am. Humanist Ass’n v. Fed.
Bureau of Prisons
3:14-cv-00565

D. Or.

REL

No (injunctive relief
with attorneys’ fees
paid by United
States)

Luna v. Jordan
1:14-cv-02028

M.D. Pa.

FTPPF/
COPF

Yes

$5350

Ingram v. United States
1:14-cv-02091

S.D.N.Y.

MED

Yes

$850,000

Chicarielli v. United States
1:14-cv-06765

S.D.N.Y.

FTPPF/
MED

Yes

$36,500

Dawkins v. Greenspan
2:14-cv-07269

C.D. Cal.

MED

No

$150,000

Total paid:

$11,510,615

637

Electronic copy available at: https://ssrn.com/abstract=3343800

The Myth of Personal Liability
72 STAN. L. REV. 561 (2020)

Table 4
Cases in Which Only Bivens Claims Remained at Settlement,
with Payment by U.S. Government

Docket
Shannon v. Fed. Bureau of
Prisons
1:03-cv-00352
Johnson v. Martinez
2:04-cv-01967
Merriweather v. Zamora
2:04-cv-71706
Montgomery v. Johnson
7:05-cv-00131
Hammond v. Sherman
1:05-cv-00339
Sloan v. Pugh
1:05-cv-00527
Nunez v. Lindsay
3:05-cv-01763
Hill v. Laird
2:06-cv-00126
Brown v. LaManna
2:06-cv-00390
Buckley v. Harding
1:06-cv-00413
Al-Kidd v. Sugrue
5:06-cv-01133
Green v. Wiley
1:07-cv-01011
Williams v. Warmerdorf
3:07-cv-01283
Williams v. Smith
1:07-cv-01382
Ellis v. United States
1:08-cv-00160
Rodriguez v. Wiley
1:08-cv-02505

Court

Allegations

Formal
Substitution of
FTCA Claims
for Bivens Claims

D. Colo.

SPEECH

Yes

$6000

E.D. Pa.

MED

Yes

$40,000

E.D. Mich.

OTHER
(privacy)

No

$27,000

W.D. Va.

COPF/
SPEECH

No

$115,000

W.D. Pa.

COPF

Yes

$18,000

D. Colo.

OTHER
(sentence
miscalculated)

No

$30,000

M.D. Pa.

SPEECH

Yes

$3000

E.D.N.Y.

SPEECH

No

$10,000

D.S.C.

ACCOM

No

$15,000

D. Colo.

FTPPF

Yes

$18,500

W.D.
Okla.

DP

Yes

$28,500

D. Colo.

MED

No

$2100

M.D. Pa.

FTPPF/
MED

Yes

$1500

M.D. Pa.

FTPPF

Yes

Unknown

W.D. Pa.

REL

Yes

Unknown

D. Colo.

MED

No

$1150

Total Paid
by U.S.

638

Electronic copy available at: https://ssrn.com/abstract=3343800

The Myth of Personal Liability
72 STAN. L. REV. 561 (2020)

Docket
Garcia v. Hicks
1:08-cv-07778
Taylor v. Miller
7:09-cv-00145
Patel v. Fed. Bureau of Prisons
1:09-cv-00200
McCarroll v. Matteau
9:09-cv-00355
Brown v. Laing
6:09-cv-00392
Brown v. Blocker
2:09-cv-00434
Willis v. Lappin
1:09-cv-01703
Counts v. Hollingsworth
3:10-cv-00229
Anderson v. Drew
1:10-cv-00996
De Anda v. Smith
1:10-cv-01094
Stine v. Allred
1:11-cv-00109
Montoya v. Wall
1:11-cv-01414
Tuttamore v. Allred
1:11-cv-01522
Freeman v. Woolston
1:11-cv-01756
Brizard v. Terrell
1:11-cv-02274
Bennett v. Watts
5:12-cv-00016
Mundo v. Shaw
1:12-cv-00184
Skurdal v. Fed. Det. Ctr.
2:12-cv-00706
Gillings v. Lepe
1:12-cv-01533

Court

Allegations

Formal
Substitution of
FTCA Claims
for Bivens Claims

S.D.N.Y.

SPEECH

Yes

$7500

E.D. Ky.

COPF

No

$25,000

D.D.C.

REL

No

$50,000

N.D.N.Y.

SPEECH

Yes

$4250

E.D. Ky.

COPF/
MED

No

$9000

D.S.C.

MED

No

$15,000

E.D. Cal.

FTPPF

No

$3000

S.D. Ill.

MED

No

Unknown

D.S.C.

OTHER
(right to
marry)

No

$5000

C.D. Ill.

FTPPF/
MED

Yes

$3000

D. Colo.

MED

Yes

$2000

C.D. Ill.

MED

Yes

$475,000

D. Colo.

MED

No

$5000

D. Colo.

COPF

Yes

$1500

E.D.N.Y.

FTPPF

Yes

$4000

S.D. Miss.

MED

No

$10,350

N.D. W.
Va.

REL

No

$20,000

W.D.
Wash.

REL

No

$45,000

E.D. Cal.

COPF

Yes

$2750

Total Paid
by U.S.

639

Electronic copy available at: https://ssrn.com/abstract=3343800

The Myth of Personal Liability
72 STAN. L. REV. 561 (2020)

Docket
Holmes v. Lepe
1:12-cv-01649
Caballero v. Mejia
4:13-cv-00630
Shepherd v. Palmer
1:14-cv-02992
Laurent v. Castellanos
1:14-cv-03340
Bolden v. Beaudouin
1:14-cv-05470

Court

Allegations

Formal
Substitution of
FTCA Claims
for Bivens Claims

E.D. Cal.

COPF

No

$2501

N.D. Fla.

MED

Yes

$500,000

D.N.J.

MED

Yes

$100,000

E.D.N.Y.

FTPPF

Yes

$5500

E.D.N.Y.

MED

Yes

Unknown

Total Paid
by U.S.

$1,611,101

Total paid:

640

Electronic copy available at: https://ssrn.com/abstract=3343800