Why Bivens Won't Die: The Legacy of Peoples V. CCA Detention Centers

Abstract

Interpreting recent Supreme Court precedent, the Tenth Circuit, in Peoples v. CCA Detention Centers, held that a federal prisoner confined in a privately run prison may not bring a Bivens suit against the employees of the private prison for violations of his constitutional rights when alternative state-law causes of action are available. The author first reviews the Supreme Court's evolving Bivens jurisprudence and turns next to an overview of the Tenth Circuit's opinion. Third, the author argues that, despite the Tenth Circuit's new approach, putative constitutional claims brought under state-law theories of recovery will often be re-federalized, producing uniform federal liability rules and federal jurisdiction. The author concludes that should the Supreme Court truly wish to end the practice of implying causes of action from the Constitution, it must reconsider a whole host of federal common law and jurisdictional doctrines - which the Court may find unpalatable.