Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)

 

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971),[1] was a case in which the United States Supreme Court ruled that an implied cause of action existed for an individual whose Fourth Amendment freedom from unreasonable search and seizures had been violated by federal agents. The victim of such a deprivation could sue for the violation of the Amendment itself, despite the lack of any federal statute authorizing such a suit. The existence of a remedy for the violation was implied from the importance of the right violated. Bivens has been subsequently interpreted to create a cause of action against the federal government similar to the one 42 U.S.C. § 1983 creates against the states.  Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971Bivens held, for the first time, that a federal court may hold individual government agents liable for money damages for violating a person’s Fourth Amendment rights. The Supreme Court further established that the Constitution itself implies a ‘‘cause of action,’’ that is, a right to sue, government agents responsible for conducting unreasonable searches and seizures.

 

 

 

Common Law Suits

 

Prior to the adoption of several modern statutes in the United States, the only way in which a private individual could prevent harm through the courts was by exercising his or her rights under common law.  These rights are based on precedents set during centuries of case-by-case adjudication in Great Britain and the U.S. They allow individuals to counteract harms caused by the behavior of others by seeking compensation for those harms and/or obtaining a court order halting the offending behavior.  Even with the advent of statutory citizen suit provisions, common law causes of action continue to provide an important mechanism for achieving environmental protection goals.

 

Most common law claims require some injury or threat of injury to the plaintiff's person or property.   A person suffering a "substantial and unreasonable interference with the use and enjoyment of an interest in land" can bring a private suit.  For example, a property owner could sue a neighboring factory for emitting dangerous or even annoying fumes that permeated his or her property.  Another common law claim for injury to property is trespass, which requires an actual physical invasion of the property's limits.  A fuel storage facility whose tanks leaked oil that flowed into a neighbor's fish pond might be liable to the pond-owner in a trespass suit.

 

Common law actions can compensate for injury to one's person as well.

 

The potential strength of such common law suits as a weapon in the enforcement arsenal stems from the financial costs they can impose on a violator.  Common law claims are the only avenues through which individuals can recover for damage to themselves or their personal property.  And damages awarded in such suits in the U.S. can be substantial.  For example, a potential court judgment for personal injury resulting from toxic pollution could include compensation for medical expenses, lost wages, and diminished earning capacity.  Damages in a common law suit involving a newborn baby who will be permanently disabled by injuries caused by the defendant's polluting activities could easily amount to millions of dollars. (46) The threat of a sizeable award of damages can substantially strengthen a citizen's power to trigger compliance -- it can deter potentially polluting activities and force industry to pay attention to citizens' claims.

 

The common law actions described are aimed primarily at correcting violations of individual rights.  By fining a defendant for such violations, or by ordering a halt to the offending activity, they can lead to broader environmental benefits as well.  The common law also provides mechanisms through which citizens can vindicate public, rather than private, rights.  These doctrines generally require that the plaintiff share some personal stake in the "public" goal pursued in the suit; moreover, they do not allow the plaintiff to recover money damages from the defendant unless the plaintiff has suffered injury to his or her person or property.  Nonetheless, the doctrines of public nuisance, public trust, and certain broad statutory mandates reveal some of the possibilities inherent in the flexibility of judge-made law.

Public nuisance involves interference with public rights such as the right to health, safety, or comfort.  Traditionally, only the government could sue to protect these rights.  Recent developments, however, allow suits by individuals who suffer "special injury" different in kind from that suffered by the rest of the public. (47)

 

A second common law action that recognizes communal rights is known as the "public trust" doctrine.  This doctrine posits that the government must hold public lands and natural resources in trust for the use and enjoyment of the citizens.  If the government fails to consider this trust in its management and maintenance of resources like navigable waters, fisheries, or parklands, individual citizens may sue those in control of the lands. (48)

 

While the doctrine is, at first glance, not applicable to privately-owned land, some state and federal courts have hinted that a regulatory or contractual link between the landowner and the government may be enough to bring the doctrine into play and to render the landowner liable for environmental harms. (49)

 

Finally, some U.S. states have explicitly recognized public rights to environmental quality in their statutes and constitutions.  Most constitutional provisions have been ineffective, because they do not permit citizens to sue for the violation of their constitutional environmental rights.  Michigan's unique Environmental Protection Act, adopted in 1970, has been more successful.  The Act permits any person to sue any other person "for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction." (50) 

 

It grants courts broad powers of review of both individual and agency actions, and permits orders altering or halting the harmful activities unless there is no "feasible and prudent alternative consistent with the reasonable requirements of the public health, safety, and welfare." Michigan courts have interpreted the Act as conferring upon them the responsibility of creating "the equivalent of an environmental common law." (51) See http://www.globallabourrights.org/alerts?id=0125

 

 

PRIVATE RIGHTS OF ACTION IN TREATIES

 

To determine whether a treaty creates a cause of action, we look to its text. See United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992) (“In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning.”). The Treaty of Amity, like other treaties of its kind, is self-executing. See Medellín v. Texas, 128 S. Ct. 1346, 1365–66 (2008); Blanco v. United States, 775 F.2d 53, 60 (2d Cir. 1985) (Friendly, J.); CURTIS A. BRADLEY & JACK L.GOLDSMITH, FOREIGN RELATIONS LAW 379 (2d ed. 2006) (“[C]ourts commonly assume that certain types of bilateral treaties, such as . . . Friendship, Commerce, and Navigation (FCN) treaties, are self-executing.”). As such, it “operates of itself without the aid of any legislative provision,” Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (Marshall, C.J.), and its text is “the supreme Law of the Land,” U.S. CONST. art. VI, cl. 2, on par with that of a statute, Whitney v. Robertson, 124 U.S. 190, 194 (1888). That the Treaty of Amity is self-executing begins but does not end our search for a treaty-based cause of action, because “[w]hether a treaty is self-executing is a question distinct from whether the treaty creates private rights or remedies.” RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 111 cmt. h (1986) [hereinafter RESTATEMENT]; accord Renkel v. United States, 456 F.3d 640, 643 n.3 (6th Cir. 2006); United States v. Li, 206 F.3d 56, 67 (1st Cir. 2000) (en banc) (Selya & Boudin, JJ., concurring). “Even when treaties are self-executing in the sense that they create federal law, the background presumption is that ‘[i]nternational agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.’ ” Medellín, 128 S. Ct. at 1357 n.3 (quoting RESTATEMENT, supra, § 907 cmt. a).