To be sure, I don’t really know what life was like in the 1970s; I wasn’t even born. Even so, I’m sure it was dreadful. After all, as I read my history books, all I see are ugly clothes, disco, impeachment, killer rabbits, long lines for gas, plus something about a “malaise.” Poor souls: The only Pokémon they had was named Gumby.* Things were bad back then—not like 2016, when everything is great. This week, alas, the D.C. Circuit was forced to return to that long-ago land of lava lamps.

Let’s begin with 1971. By way of background, the late Justice Scalia was not a fan of Bivens v. Six Unknown Named Agents, the oft-cited 1971 Supreme Court case creating a private right of action against federal officials who violate the U.S. Constitution. Indeed, he derided Bivens as “a relic of the heady days in which this Court assumed common-law powers to create causes of action—decreeing them to be ‘implied’ by the mere existence of a statutory or constitutional prohibition.” On the other hand, because the United States is protected by sovereign immunity, those whose constitutional rights have been violated by federal officials might be left without a remedy if they could not sue the officers themselves. Thus, as the Supreme Court explained in FDIC v. Meyer, “we implied a cause of action against federal officials in Bivens in part because a direct action against the Government was not available.”

But maybe that premise of Bivens is wrong: maybe a direct action against the United States is available, at least sometimes. This week, the D.C. Circuit concluded that the United States—through the Federal Tort Claims Act—has waived its sovereign immunity for those cases in which a federal official has violated the U.S. Constitution. According to the D.C. Circuit, the discretionary function exception to the FTCA (which essentially reinstates the United States’ immunity for discretionary acts) does not categorically apply when it comes to constitutional violations. Isn’t that in tension, however, with Bivens?

Let’s back up and examine Loumiet v. United States, the case at issue. For years, the Office of the Comptroller of the Currency (OCC) pursued an enforcement action against Carlos Loumiet, a bank auditor. He says that as a result, his business, income, and emotional state all suffered. The OCC thereafter dismissed the enforcement action—an enforcement action, by the way, that the D.C. Circuit concluded a few years ago was not “substantially justified.” Loumiet then sued the federal government (pro se) under the FTCA, claiming “intentional infliction of emotional distress, invasion of privacy, abuse of process, malicious prosecution, negligent supervision, and civil conspiracy.” “He also alleges that the OCC’s retaliatory enforcement action violated his First and Fifth Amendment rights.” His suit was dismissed under the FTCA’s discretionary-function exemption.

Judge Pillard, joined by Judges Rogers and Sentelle, reversed, concluding that the exception “does not shield decisions that exceed constitutional bounds, even if such decisions are imbued with policy considerations.” “Indeed, the absence of a limitation on the discretionary-function exception for constitutionally ultra vires conduct would yield an illogical result: the FTCA would authorize tort claims against the government for conduct that violates the mandates of a statute, rule, or policy, while insulating the government from claims alleging on-duty conduct so egregious that it violates the more fundamental requirements of the Constitution.”

But what about the statement in Meyer that the Supreme Court “implied a cause of action against federal officials in Bivens in part because a direct action against the Government was not available”? Now, under the D.C. Circuit’s opinion, a plaintiff sometimes can sue the United States when government officials violate the Constitution. Here is what Judge Pillard had to say about Bivens (citations omitted):

[T]hose contentions miscast the relationship between FTCA state-law torts and Bivensconstitutional claims. The state-law substance of an FTCA claim is unchanged by courts’ recognition of constitutional bounds to the legitimate discretion that the FTCA immunizes. Federal constitutional claims for damages are cognizable only under Bivens, which runs against individual governmental officials personally. The FTCA, in contrast, provides a method to enforce state tort law against the federal government itself. A plaintiff who identifies constitutional defects in the conduct underlying her FTCA tort claim—whether or not she advances a Bivens claim against the individual official involved—may affect the availability of the discretionary-function defense, but she does not thereby convert an FTCA claim into a constitutional damages claim against the government; state law is necessarily still the source of the substantive standard of FTCA liability.

That’s true, of course. But as Judge Jerry Smith of the Fifth Circuit (for whom I clerked) has explained:

It is difficult to conceive of a violation of a constitutional right that does not also give rise to a state cause of action. For instance, many violations of the Eighth Amendment by prison officials likely also constitute negligence under state law. Unconstitutional searches theoretically can be cognizable as trespass. Violations of the Third Amendment can be characterized as a trespass or an invasion of privacy. Until now, under Meyer, we lacked jurisdiction to consider these “constitutional tort claims.”

Under the majority’s framework, by a plaintiff’s artful pleading, the United States can be liable whenever the Constitution is violated even though, under Meyer, the sovereign is not subject to liability for constitutional torts. The . . . two-step rubric would go like this: First, allege a constitutional violation, thereby avoiding the discretionary function exception. Second, plead a state cause of action that overlaps with that constitutional violation, then seek damages under that state cause of action. Voila! No more sovereign immunity.

(Note, following Judge Smith’s dissent, the en banc Fifth Circuit vacated the panel majority’s opinion, albeit without much analysis.)

The question thus seems to boil down to this: If the Bivens Court knew that the United States’ sovereign immunity could so easily be defeated, would it have created a Bivens right of action, at least in those circumstances in which a plaintiff could be made whole by suing the United States directly (i.e., where the unconstitutional conduct overlaps with a state cause of action)? No doubt, perhaps the Supreme Court still would have reached the same result, but it does not seem like a stretch to think that its opinion (at least) would have been different.

There is a lot more that could be said about Loumiet—and maybe there will be a chance to say it because the United States might seek rehearing en banc or maybe even Supreme Court review. But what I’ve written should be enough to give you a flavor of the opinion. This one strikes me as quite important.

Next, jump ahead to1973. This week, the D.C. Circuit also issued another important decision about implied rights of action: International Union v. Faye. This too is a case that we may hear more about, especially because there is a circuit split and this single case prompted four (yes, four) opinions: the majority (by Judge Tatel, joined by Judge Millett), a concurrence by Judge Tatel, a must-read concurrence by Judge Millett, and a strong dissent by Judge Kavanaugh (indeed, so strong that Millett suggests that that if her hands were not tied by precedent, she would agree with it).

First, let’s quote the majority opinion:

The Labor-Management Reporting and Disclosure Act sets out fiduciary duties that officers and other agents of unions owe the union that employs them. It also permits a union member to bring a lawsuit for breach of those duties in federal court “for the benefit of the labor organization,” but only after “the labor organization or its governing board or officers refuse or fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so.” 29 U.S.C. § 501(b). The statute does not, however, expressly give the union itself a cause of action for breach of fiduciary duty in federal court. In this case, we must decide whether the statute contains an implied cause of action for the union itself. Our decision on a closely related issue in Weaver v. United Mine Workers of America, 492 F.2d 580 (D.C. Cir. 1973) (per curiam), requires that we answer that question in the affirmative.

Next, the Tatel concurrence:

I write separately to explain why, even absent Weaver, I would conclude that LMRDA section 501 gives unions a cause of action. As I see it, the statute’s text and structure reveal Congress’s intent both to create federal rights and to allow unions to vindicate those rights in federal court.

. . .

I am also unpersuaded by the arguments advanced by my two colleagues. First, to be sure, as Judge Kavanaugh points out, “‘where a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies.’” Id. at 5 (quoting Karahalios v. National Federation of Federal Employees, Local 1263, 489 U.S. 527, 533 (1989)); see also Millett Concurring Op. at 4–5. But here, the textual and contextual evidence of statutory intent is strong, and the“additional remed[y]” consists merely of allowing the ultimate owner of a derivative claim to bring suit in its own name.

Now, the Millett concurrence:

The issue in this case sounds simple: can a union file suit as a plaintiff to enforce the fiduciary duties Congress declared in 29 U.S.C. § 501? But the answer is hard, lying at the intersection of important questions about the binding reach of circuit precedent, statutory construction, and constitutional avoidance. At bottom, I agree that Weaver . . . directs our disposition of this case, for the reasons so well explained by the majority opinion. I write separately to explain further my conviction that Weaver controls notwithstanding the arguments made in the dissenting opinion, and yet to acknowledge the force of the arguments against Weaver’s correctness, as well as to note the potential constitutional problems the issue raises.

. . .

Allowing the union itself to take over enforcement of Section 501 rights would put back into the union’s hands the very authority Congress sought to confer on individual members, and would empower corrupt unions to throw the Section 501 litigation or enter into sweetheart settlements. . . . [I]f we were writing on a clean slate, the relevant indicia of statutory intent would, in my view and as well explained by the dissenting opinion, weigh heavily against implying a right of action for unions to prosecute lawsuits under Section 501.

. . .

Having said all of that, one thing would still give me pause about denying a union the right to sue under Section 501: Unless the union can sue, the enforcement scheme that Congress devised could potentially run into some constitutional headwinds. For starters, Congress is clear that the fiduciary duties in Section 501(a) belong to the union, and to that end provides that any recovery also goes to the union itself. The ability of Congress to empower a third party—someone completely outside of the union’s control—to independently enforce and definitively adjudicate the union’s own rights would seem to raise due process concerns.

. . .

On top of that, the ability of individual union members to sue in federal court to enforce the union’s legal rights—based on injuries inflicted only on the union or the membership as a whole and to obtain a recovery that runs 100% to the union—may raise an Article III standing question.

And finally, the Kavanaugh dissent:

“Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress,” not the Judicial Branch. Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Courts must therefore be “reluctant” to “provide a private cause of action where the statute does not supply one expressly.” Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004). Courts may find an implied cause of action only if they determine that the statute “displays an intent to create not just a private right but also a private remedy.” Sandoval, 532 U.S. at 286. Applying the Supreme Court’s precedents regarding implied causes of action, I would conclude that Section 501 does not create an implied cause of action for unions. . . . Notably, as far as anyone is aware, the Supreme Court has never found an implied cause of action for one party to sue under a particular statute when Congress expressly created a cause of action for another party to do so. We should not start now.

. . .

To start, even the Union here does not rely on Weaver to support its arguments. Think about that. In its opening brief, the Union did not rely at all on Weaver. At oral argument, the Union was offered Weaver on a silver platter. See Tr. of Oral Arg. at 8. But the Union declined to indulge. In no uncertain terms, the Union said it would be too much of a reach to argue that Weaver had any relevance here: “[G]iven th[e] rather unique circumstance of that case,” the Union explained at oral argument, Weaver “does not directly address the issue before this Panel.” Tr. of Oral Arg. at 8-9. Again, remember that this was the Union speaking. Even the Union did not think it could make a good argument that Weaver controlled this case.

At this point, your “five minutes a week” has probably already been spent and you’d rather start reading about Deflategate or the new (Contra-less) Nintendo. If you want to go into overtime, however, there are more opinions.

Patchak v. Jewell: If this were another a week, I would devote the entire post to this fascinating jurisdiction-stripping case authored by Judge Wilkins (and joined by Judges Rogers and Pillard). This paragraph provides the background: “Following the Supreme Court’s determination in 2012 that Mr. Patchak had prudential standing to bring this lawsuit, see Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2212 (2012), Congress passed the Gun Lake Trust Land Reaffirmation Act (the Gun Lake Act), Pub. L. No. 113-179, 128 Stat. 1913 (2014), a stand-alone statute reaffirming the Department of the Interior’s decision to take the land in question into trust for the Gun Lake Tribe, and removing jurisdiction from the federal courts over any actions relating to that property. Taking into account this new legal landscape, the District Court determined on summary judgment that it was stripped of its jurisdiction to consider Mr. Patchak’s claim. Holding additionally that the Act was not constitutionally infirm, as Mr. Patchak contended, the District Court dismissed the case.” The panel affirms, with a lot of interesting analysis along the way. (By the way, this portion of the opinion has to sting for Chief Justice Roberts: “Congress is generally free to direct district courts to apply newly enacted legislation in pending civil cases. See Bank Markazi [v. Peterson, 136 S. Ct. 1310, 1325 (2016)] . . . This rule is no different when the newly enacted legislation in question removes the judiciary’s authority to review a particular case or class of cases. . . . It is well settled that ‘Congress has the power (within limits) to tell the courts what classes of cases they may decide.’ City of Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013).” Sure, the Arlington quote is fairly mild, but those two opinions have prompted some of the sharpest Roberts dissents in a while. At least Wilkins didn’t also cite Wellness Intern. Network, Ltd. v. Sharif.).

Friends of Animals v. Jewell: This is an interesting informational standing opinion authored by Judge Rogers and joined by Judges Srinivasan and Millett. It also deserves a more fulsome discussion. As it is, however, here is the takeaway: “Does Friends of Animals have informational standing under Article III of the Constitution to challenge the failure of the Secretary of Interior to act in accordance with a deadline in section 4 of the Endangered Species Act? Because this deadline provision does not itself mandate the disclosure of any information, Friends of Animals has not suffered an informational injury and therefore does not have informational standing. Essentially, Friends of Animals has invoked informational standing prematurely. At this stage in the administrative process, Friends of Animals is not entitled to any information.”

EarthReports, Inc. v. FERC and BP Energy Company v. FERC (both per Judge Rogers, joined by Judges Griffith and Kavanaugh): These are two complicated FERC cases. The first is resolved by the “Freeport” case discussed a couple of weeks ago. The second remands to FERC for more explanation: “we remand the case to the Commission for further explanation of why the 2012 turn back agreement between Dominion and Statoil was not unduly discriminatory as to BP Energy under NGA § 3(e)(4). Although we need not reach BP Energy’s contention that the agreement was an impermissible ‘sweetheart deal,’ the Commission may also wish to consider and explain on remand the extent to which such a deal is relevant to the undue discrimination analysis.” If you are interested in what that means, read the opinion!

Finally, Marshall v. Honeywell Technology Systems. This case isn’t important at all. Just kidding—this involves a circuit split too, plus it has a dissent. Judge Randolph, joined by Judge Henderson, concluded that the district court did not abuse its discretion by invoking judicial estoppel “stemming from [the appellant’s] failure to disclose this lawsuit and related administrative proceedings on the schedules she filed with the bankruptcy court.” Judge Griffith dissented because “there is a genuine dispute over whether she lied or simply made a mistake on her bankruptcy forms.” This summary does not do justice to this case; you really ought to read it. Here’s a taste: “We could end our opinion here. Cases such as this one are legion in the other circuits. So we add a few words about how the courts of appeals have evaluated the frequent contentions of bankruptcy debtors in light of the Supreme Court’s observation—in a case that did not involve inadvertence or mistake—that ‘it may be appropriate to resist judicial estoppel when a party’s earlier position was based on inadvertence or mistake.’”

Phew! I believe this is the longest blog post I’ve ever written. But take heart: There is a cycle. Come fall, there will be weeks with no opinions at all.

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* Get it—“Pokey”-man? Ugh, you’re right—that’s an awful joke. (Also now that I think about it, any decade that generated The Ramones can’t be all bad.)

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