A Backdoor Bivens Remedy: State Civil Rights Torts and the Federal Tort Claims Act
Aseem Chipalkatti * | 23.5 | Comment | Citation: Aseem Chipalkatti, Note, A Backdoor Bivens Remedy: State Civil Rights Torts and the Federal Tort Claims Act, 23 U. Pa. J. Const. L. 1118 (2021).
This Comment argues that the Federal Tort Claims Act permits suit against the United States based on state law theories of tort that would otherwise be phrased in a Bivens action. Plaintiffs seeking redress against the federal government for Constitutional violations should claim focus on their injuries as stated by state prohibitions against discrimination in places of public accommodation. By shifting their focus, plaintiffs can still receive compensation for discriminatory and injurious acts by federal tortfeasors without running afoul of the corpse of the Bivens doctrine. Relying on state statutory schemes that were meant to universalize constitutional equality similarly avoids any potential scope issues with the Federal Tort Claims Act. Admittedly, such a remedy is limited to states that allow a private right of action for discrimination in public accommodation and do not require state administrative exhaustion before such a right can be exercised. Similarly, this remedy would not aid claimants whose injuries did not stem from discriminatory acts. Yet as avenues of redress against the federal government are slowly but steadily cut off, this backdoor remedy provides at least one small opportunity for compensation.
Part I first identifies the concept of a state civil rights tort and identifies states where private rights of action for their violation exists through a fifty state survey. Part II illuminates the background and requirements of the Federal Tort Claims Act with an eye to the idea that it was written to be an expansive, unlimited remedy based on state tort schemes. Part III illustrates the workability of the remedy, with special focus on its mechanics. Part III also addresses two potential concerns with the concept and limits the applicability accordingly.
This is not a universal remedy and is limited to just 24 states and the District of Columbia. It does, however, offer at least some succor and redress to ensure persons injured by federal tortfeasors in an era where doors seem to be slamming shut.
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*Aseem Chipalkatti graduated from the University of Pennsylvania Law School in 2021 and Claremont McKenna College in 2015. He is overwhelmingly appreciative of the guidance and assistance of Professor Seth F. Kreimer in completing this Note. This Note was inspired by work done by the ACLU of Washington and conversations with Jennifer Chung in 2018.