SCHWEIKER v. CHILICKY

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ORAL ARGUMENT BY CHARLES FRIED, ESQ. ON BEHALF OF PETITIONERS

Chief Justice William H. Rehnquist: General Fried, you may begin whenever you are ready.

Mr. Fried: Thank you, Mr. Chief Justice and may it please the Court:

In this case the Plaintiff Respondents were terminated from the Social Security disability roles and subsequently their disability benefits were restored either through the appeals process or by new application, and they were restored retroactively either through the appeals process or in compliance with the 1984 Reform Act.

Separately, they brought this Bivens action against the Secretary of Health and Human Services; the Commission of Social Security; and the head of the state agency charging that their due process rights, their constitutional rights, had been violated in that those three individuals had caused them to be subject to advertently inaccurate and legally unwarranted determination which resulted in the loss of their benefits in the first instance.

Our contention is that whether or not there was a due process violation here, and whether or not ultimately the three individual defendants are found to be qualifiedly immune, this cause of action is precluded for three reasons: it is precluded by the statute itself; it is precluded because the statute occupies the field and is a comprehensive scheme so-occupying the field; and it is precluded because there are here special factors counselling hesitation.

Taking the statutory preclusion first, 405(g) provides an unusually capacious system for raising any kind of claim, statutory or constitutional, and allows a wide variety of relief: class action relief; injunctive relief, and allows constitutional as well as statutory claims to be read.

405(h) says that this scheme is to be the exclusive scheme for raising issues regarding social security benefits, and the third sentence, the second sentence... one might say, says what you must do... which is to have recourse to 405(g) scheme; and the third sentence, what you may not do.

What you may not do is try an end-run around the 405(g) scheme by having recourse to Section 1331 General Federal Question jurisdiction, which is precisely what the Respondents did in this case.

The second reason that this cause of action is precluded is that there is here an unusually comprehensive and complex scheme, which over... which occupies the field.

And it's a scheme which is not only complex, but is continuously fine-tuned by Congress, so that Congress has, as it were, not only laterally, but over time, occupied this field, so that it quite inappropriate to overlay that scheme with a personal action for damages against high government officials out of their own pockets.

And finally, there are special factors counselling, hesitation.

Now, these three bases for preclusion are each of them in our view quite sufficient to dispose of the claim.

But in fact they converge and work together.

The 405(g) and (h) scheme precludes a Bivens action here because the scheme is so comprehensive.

And the scheme is so comprehensive because of the special factors which counsel hesitation.

Congress was surely aware how contentious it was to deal with and to take away or to deny social security benefits, and the numbers of cases in which these contentious issues would arise.

So these three reasons are separately, but they work together jointly as well, and together they make quite clear that this is not a case in which the Bivens action is appropriate.

I would suggest that after a certain amount of oscillation, this Court came to rest in Bush v. Lucas on the proper role of the Bivens action.

There were two extreme poles in which the argument proceeded.

One pole would have had... and no member of this Court I believe ever took up a position there... one pole would have said that there must be constitutional damages where there is a constitutional right, and that damages are specified by the Constitution itself.

That would make every constitutional clause carry with it a constitutional damage remedy in the way that this Court in the First English case last term, said that the 'just compensation

"clause is a constitutionally-mandated damage remedy. "

The other way, the opposite pole, was taken up by Justice Black in his dissent in Bivens, which said, 'only if the Congress has specifically authorized the Court to grant a damage remedy, should there be one.

Where Bush v. Lucas came to rest is to see that there is here an interpretive partnership between the Court and Congress, a partnership which, in the end, should leave the area of law with a scheme that makes sense.

But it is a partnership in which Congress is necessarily the senior partner; it is the senior partner because it's been recognized that Congress can preclude a damage remedy; and Congress can act in such a way... and this is where I think Bush contributed, can act in such a way that it no longer makes sense to imply that damage remedy which otherwise the Court under 1331 would have the power to do.

Now, this case seems to us to be just like Bush.

There is one and only one point of departure, and that is the obvious fact that persons who are terminated from social security benefits are often likely to suffer greater hardship than those who have been fired from federal jobs.

Unidentified Justice: And there are many of them.

Mr. Fried: There have been many of them, yes.

Unidentified Justice: However, the initial determination has been upset.

Mr. Fried: There have been many of them.

We have set out in our brief the finding from the Senate Report explaining why those initial determinations are likely to have been upset.

New evidence comes in at later stages; the ALJ stage is the first stage at which there is a personal confrontation with a decisionmaker, so I don't think it would be appropriate to lay all the incorrect decisions at the door of callousness or malice.

The hardship is greater, but it is a kind of hardship which this Court specifically confronted in Mathews v. Eldridge, and there held that post-termination restoration of benefits were sufficient to satisfy the requirements of due process.

Working in the opposite direction, this case seems to us clearer than Bush, because the fine tuning which Congress has engaged in, is a fine tuning which has occurred frequently.

Congress has revisited this problem time and time again, and has in fact addressed many of the complaints which are raised in this case.

And most importantly, unlike Bush, the constitutional violations, if they occur, occur in the course of an administrative, adjudicative process, such that the process itself carries with it a means for redress.

The crucial point in our view is that the Respondents are profoundly wrong in saying that it is necessary to imply a Bivens remedy, lest the Respondents here are left voiceless in respect to their constitutional claims, lest their constitutional wrongs remain voiceless, because we have in 405(g) a remedy which this Court, together with Congress, and I think this Court particularly, has made particularly receptive to all kinds of claims, and most recently in the City of New York case.

in the City of New York case, we had precisely the same complaints that are being raised here in this case.

And the Court found a way to make 405(g) perfectly adequate to respond to those claims.

So those claims, whether constitutional or statutory, whether factual or legal, can be raised and can be raised within what has been described as the unusually protective scheme of 405(g).

Unidentified Justice: What the Respondents are saying, General Fried, is that's a remedy, but a remedy for a different wrong; that they're not complaining here about the denial of benefits.

Those sections will indeed allow us to remedy the denial of benefits.

But what they're complaining about is not the denial, but the denial of due process that led to the denial, and that's what they want a remedy for.

Mr. Fried: They are, of course, complaining of the denial of benefits, but they add adverbs to that complaint: they say we were denied benefits and we were done so illegally, unconstitutionally.

They complain that 405(g) gives them a remedy for everything but the adverbs.

Now it seems--

Unidentified Justice: What damages are they seeking here--

Mr. Fried: --They are seeking damages for emotional distress and the Complaints states that they are seeking damages for loss of the food, medicine, and other necessities which they were deprived of.

Now, there is a certain puzzle about that, because there is, of course, they received the financial award with which they would have purchased that.

Unidentified Justice: --They did get benefits retroactively?

Mr. Fried: They did.

All three of them.

Chilicky got them, not as a result of the administrative process, but in compliance with the 1940 and 1984 Act, but all three have received retroactive benefits, so that the Complaint must be for what we must describe as consequential damages: emotional distress; and the loss that comes about from not having had that money when you wanted it; and where obviously, you could have used it; and perhaps when you desperately needed it.

Unidentified Justice: General Fried, is their claim comparable to the claim the Court sustained in First English?

Mr. Fried: I don't believe so, because the First English case dealt with a Fifth Amendment taking violation.

Unidentified Justice: I understand the legal theory is different, but they, in effect, are saying it's not enough to give us our property back after all the litigation is over.

And that's what the Court said with respect to the interference with the use of property in that context.

Mr. Fried: The Court certainly did.

But the reason that the Court came to that conclusion, and it focused its conclusion on the point was that the Constitution itself in so many words, requires "just compensation".

So the damage remedy awarded in First English was a damage remedy which was itself required by the Constitution.

And that is how the Court in, may I say, rejecting a suggestion of the Solicitor-General, decided that case.

Unidentified Justice: In adhering to a precedent that had been decided some fifty years before, you might also say.

And rejecting a very persuasive dissent.

0 [Mirth.]

Mr. Fried: It was an exciting case.

0 [Mirth.]

But it was a case which dealt with a very special set of circumstances; a constitutional provision which carried with it its own damage... a constitutional remedy... and which was focused quite specifically on traditional kinds of property, which this Court has several times held social security benefits are not.

Unidentified Justice: I'm not sure the plain language is quite as persuasive as you make it, because the clause says,

"No property shall be taken without just compensation. "

It doesn't say there shall be just compensation; they went ahead and took it.

And it also says,

"No person shall be deprived of property without due process of law. "

They're both phrased in the negative.

Mr. Fried: That is correct.

Unidentified Justice: Yes.

Mr. Fried: But the "due process of law" clause does not say "without just compensation".

Unidentified Justice: No.

Mr. Fried: And that, I think, is... thereby hangs that particular tale, I would suggest.

Unidentified Justice: You would say that you remedy the one by providing the "just compensation" that was not provided; and you remedy the other by providing the "due process" not provided, I presume?

Mr. Fried: Well, that, I would say that the Constitution requires no more than that you provide the "due process".

This Court has said--

Unidentified Justice: Unless it is too late to provide the "due process".

Mr. Fried: --that you may apply more, but there is no constitutional requirement that you do so.

And yet, Respondents argue as if there were a constitutional requirement that you do so.

Unidentified Justice: Well, how do you supply the "due process" when it's too late?

Do we do that in damages?

How do we do that?

Mr. Fried: Well, you supply the "due process" by applying due process, and that means in this case, you give that which, if you have taken away that which the law says you should not take away, you think again and you said, "No, we were wrong"; and you give it to the person.

Now, there is no additional requirement that you also pay something extra for having gotten it wrong the first time.

Unidentified Justice: Is there a requirement that you give retroactive benefits?

Mr. Fried: There is a statutory requirement that you do so.

Unidentified Justice: Is there a constitutional requirement?

For the purposes of our determining whether or not there is a Bivens action?

Mr. Fried: The fact that there are retroactive benefits, I should think, would help mightily in determining whether what 405(g) has done here is sufficient to displace a Bivens action.

I don't believe that, absent Bivens, there is a constitutional requirement that you give retroactive benefits.

After all, if a person has been incorrectly imprisoned and is then released because a constitutional error has been made, the complete, at constitutionally complete, answer is he is now a free man.

There is no constitutional requirement that he somehow be compensated from what might be years of unjust incarceration.

Unidentified Justice: But you would say that, in determining whether there should be a Bivens action here, the sufficiency of the compensation is highly relevant?

Mr. Fried: It is certainly relevant.

It is relevant just as it was in the Bush case, where the compensation was precisely what it is here in this case.

I should say that Bush being fired is indeed stigmatizing.

I think the claim that being removed from the disability roles is somehow stigmatizing, is a somewhat unwarranted stretch.

If I may, I would like to reserve the remainder of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, General Fried.

We'll now hear from you, Mr. Tribe.

ORAL ARGUMENT BY LAURENCE H. TRIBE, ESQ. ON BEHALF OF RESPONDENTS

Mr. Tribe: Mr. Chief Justice and may it please the Court:

The Respondents in this case spent their working lives paying into Title II's disability insurance program, and they have no quarrel with its comprehensive design, the one that the Solicitor-General praises, for deciding who gets what benefits; how errors are reviewed and corrected; how mistakenly-withheld benefits are to be recovered from the Government.

As he correctly points out, the benefits were recovered, and they don't really complain about where Congress chose to locate what the Solicitor-General in his reply brief, calls the

"ballast of the social security system. "

how tight a ship Congress chose to run.

Their point is, they didn't fall overboard; they allege that they were pushed.

And their complaint is that the individual Petitioners in this case deliberately abused this well-designed machine; and abused their power by setting arbitrary quotas.

And these, we think, are not simply "adverbs" of constitutional import, even if one doesn't agree to the exciting First English decision.

I think there was no disagreement with at least that part of Justice Stevens' dissent that suggests that when there are improperly motivated, or fairly conducted, or unnecessarily protracted facts of government decisionmaking.

That's a separate due-process violation.

And it has been quite traditional for courts to recognize intentional abuse of process as a tort quite distinct from any benefits lost and recovered along the way according to the exclusive government system for recovering those benefits.

I think Judge Friendly was the first to see it in the Title II context in the Second Circuit in 1981 in Ellis v. Blum, when he held that abusive termination of Title II benefits, which are later restored retroactively, give rise to a Bivens action under 1331 for emotional distress and consequential damages.

Actually, he may not have been the first, although the context was a bit different.

Justice Kennedy, in Flores v. Pierce, in the Ninth Circuit, held that, when state officials deliberately and for unconstitutional reasons, interfere with the attempt of a licensed applicant to obtain the license, the fact that the license is ultimately obtained according to the normal course of the normal process does not prevent the 1983 action seeking consequential damages and damages for emotional distress for the deliberate abuse of the process putting them through the ringer, when they ought not to have been put through it.

Now, the Solicitor-General, I think, paints quite a false picture when he says--

Unidentified Justice: Mr. Fried... at some point... it doesn't have to have been... I'd appreciate your describing just briefly in perhaps more detail what it is that the Respondent claimed that the Petitioners did?

Mr. Tribe: --Yes, Mr. Chief Justice: they claim in the Complaint, and the case arose on the dismissal of that Complaint... they had arbitrary quotas saying a fixed number of people, regardless of any evidence of disability, have got to be cut from the rolls... we call it being tossed overboard... in order to meet the pressure from "on high".

Budgetary pressure.

We will go through the motions,

"they claim the Petitioners said, but we won't really look at the evidence. "

And we also claim that certain diseases were arbitrarily blacklisted; that this was an arbitrary exertion of power.

Of course, they haven't had the chance through discovery to prove it.

But what they want is a chance to prove it against officials who, under this Court's decision, are not entitled to absolute, but only qualified, immunity.

And they want a chance to prove it, not as the Solicitor-General suggests, by somehow reconstructing this comprehensive machine that Congress has ably developed for getting back the benefits that were wrongfully withheld; or mistakenly withheld; you don't have to show any wrong; it's an honest mistake... to get the benefits back.

What is at stake here is quite another system altogether: it is a system that this Court began to construct in 1971 in the Bivens case using the Constitution's substantive provisions as a navigation chart using the historic, traditional, common law remedies as a compass; and it is that system that which the Solicitor-General says ought now to be withheld in this case.

Unidentified Justice: As to the individual benefit denials... if a particular respondent felt that he had been "tossed off" because deliberately they were paying no attention, he could have challenged that in court, could he not, under the Social Security Act?

Mr. Tribe: Mr. Chief Justice, as the Solicitor-General calls them, 405> ["], he could have run immediately to court, and that is what it appears, the Solicitor-General counsels, that the best solution is not damages which might deter this misconduct, but judicial interference without even exhausting remedies, he suggests, immediate declaratory and injunctive relief.

Now, some of these disabled people are not necessarily capable of gearing up machinery that well.

But we don't disagree with this Court's decision as giving them that option.

What we suggest is that that option, unlike the quite-normal Bivens option, number one, leaves victims uncompensated if they don't get to court on time.

Unidentified Justice: But that's true of any option--

Mr. Tribe: Well, it is true--

Unidentified Justice: --if you don't take advantage of it, it doesn't do you any good.

Mr. Tribe: --Well, if you take advantage of Bivens, at least after the fact, it won't, to answer Justice O'Connor's question, be too late.

That is, the Bivens remedy... presumably, you know, it's conceivable that in Bivens they could have detected a pattern of FBI abuse and gone to court to get some kind of relief.

But that didn't prevent this Court from giving them damages.

The point about this episodic intervention through injunctive relief, is that it raises all of the prospects--

Unidentified Justice: I don't mean injunctive relief.

Couldn't you have gone into court and say that,

"My benefits were denied in the administrative process for the precise same reason you say now because there was an unconstitutional scheme afoot, they weren't listening to evidence. "

A district court could have reversed that.

Mr. Tribe: --Well, these particular Respondents did go to court and filed the Complaint under 1331 seeking that relief.

The reason that this case is not here under 405(g) and (h) is that they do not make a claim that arises under the Act.

It is their point... and I want to make this as clear as I can... that 405(g) and (h) are fine provisions designing a limited waiver of sovereign immunity for getting something from the Government.

When 405(g) and (h) were written in 1939, it would have been quite impossible, as the Solicitor-General points out in his brief, to preclude Bivens remedies... impossible, indeed, because it was to be three decades until a right of action under Bivens for this kind of abuse was recognized by the Court.

But the fact is that that limited exposure of the federal treasury under 405(g), and the Court called it

"a limited waiver of sovereign immunity. "

under City of New York v. Bowen, does not, as the Solicitor-General suggests, purport to provide, as he put it in his words, an

"exclusive scheme for raising all issues regarding social security benefits. "

The fact that social security benefits exist in the background did not prevent Judge Friendly from seeing in Ellis v. Blum that these claims arise under the Constitution, and not under the Act.

Unidentified Justice: Mr. Tribe, could I ask you: suppose there hadn't been any constitutional violation and simply a denial of benefits wrongfully under the statute, in all good faith, but it was wrongfully denied.

Now, surely the people who were subjected to that non-constitutional violation could have the same kind of damages that you ask us to give to your clients for here.

They too, could have been deprived of their residences; evicted; or whatever else.

They could have had all those consequential damages; but Congress has chosen to give, as relief, only the amount of money that should have been paid, even though the same consequential damages would have been fair.

Now, don't you think that that may be some indication of what Congress wants to be done with respect to any Bivens claims that there are?

Mr. Tribe: Well, there are several answers, I think, Justice Scalia.

First of all, the fact is that here, unlike the Civil Service area, Congress did not calibrate what it wants to be done to the existence of any abuse.

Congress simply provided a way of getting these benefits delivered to the right people.

Unidentified Justice: But why not the consequential damages along with those benefits, which would follow?

Mr. Tribe: It seems to me that, to answer the question of what Congress sort of had in mind in this area as it revisited it over and over,

"as the Solicitor-General says it did in the '80s, it is important to understand what was going on in Congress during the period when this fine-tuning occurred. "

Late last week, in Bowen v. Galbreath, this Court pointed out that, when it fine-tuned one of the titles; that is, when it passed Title XVI of the Act, Congress, in a telling omission, did not include certain language that had appeared in Title II.

And that led me to inquire over the weekend what proposals did Congress have before it that might bear on this question, during the period of the 1980s when it was fine-tuning the delivery system?

And the fact is that in December 1981, ten months after the Second Circuit had applied Bivens to the abusive termination of Title II beneficiaries, Secretary Schweiker, the Petitioner in this case, joined several other Cabinet members in officially urging Congress to pass S. 1775, which would have ended Bivens liability for most federal officers, including most particularly, officials of Health and Human Services, when plaintiffs allege what Secretary Schweiker called "constitutional torts" in the denial or termination of benefits.

That law had some predecessors in the late '70s that this Court took note of in Carlson.

1775 would have actually given liability damages from the U.S. Treasury from the people who were cut off as for others who were denied Bivens remedies.

And yet it was opposed on really two grounds; first that it was not sufficiently protective of victims; and second, that it wouldn't deter future abuses well enough.

In the end it died in committee.

And Majority Leader Baker in January 1984, said on the Senate floor, that Bivens reforms of that kind had proved too controversial to press as part of any other kind of reform.

Later that year, unanimously, Congress passed the Social Security Reform Act of 1984.

Now, to take from history, where Congress is adjusting and fine-tuning the system for returning benefits withheld by honest mistake, to take from that the lesson in this partnership between Congress and the Court, that Congress has implied a negative with respect to Bivens actions, for abusive termination, seems to me to take the possibility of employing implied repeal of the Bivens background much further than is justifiable.

I don't think you can read either in what Congress did in 1939, before anyone dreamed of Bivens, when it was really enacting a limited waiver of sovereign immunity, for what it did do in the 1980s as somehow suggesting that it wouldn't make sense for this Court to do here what it did in such cases as Bivens and Davis and Carlson.

Unidentified Justice: This case seems a lot closer to Bush against Lucas than any of those, I must say.

Mr. Tribe: Well, Justice O'Connor, the principal reason that is given by the Solicitor-General that this is a lot like Bush against Lucas in his brief, is that the social security system is too big; too complex; and the remedies are too comprehensive.

The remedies, as I have just tried to indicate, are remedies against the system for failing to deliver what it promised, not for those who deliberately abused the system.

But the suggestion that it's vast; and that its size is somehow the criterion that should make it rather like Bush, the elaborate civil service system, we think is not defensible.

In Bush, and indeed later in Chappell and in Stanley, the special factors were all qualitative: they related not to size, but to subject matter, like the commitment of federal personnel policy, or the incidence of military status to the political branches.

Size; complexity, I don't think provide a judicially-manageable line.

In any event, if the social security system is too big and too complex; then why not the federal law enforcement administration?

That is, Bivens itself imposed damages remedies in a context where there are tens of thousands of law enforcement officers; why not prison administration?

Unidentified Justice: Mr. Tribe, of course there you have the same complex remedial system in the law enforcement area.

Mr. Tribe: Well, but--

Unidentified Justice: But let me ask you a different question: Justice Scalia asked you about... you may have the same kind of damage from statutory violations.

I wonder if you could not also have the same kind of damage from constitutional violations; arbitrary quotas; the same things you allege here; but as the result of carelessness and poor staffing and all the rest rather than as a result of deliberateness?

My question is, is your emphasis of deliberate wrongdoing because you think that's a part of the constitutional violation, or you think as a matter of prudence, the remedy should be so-limited?

Mr. Tribe: --We think, Justice Stevens, after Daniels and Davidson, that it's part of the constitutional violation.

From the point of view of the poor person who can't buy food and medicine, whether the deprivation is the result of some arbitrary quota or some honest mistake, may be a matter of only academic interest that he couldn't really care much about.

But this Court, I think, made a point, of which I know that in those cases you were not in full accord, that the ordinary concept of constitutional command draws a line between deliberate abuse of power and honest mistakes; the kind of thing that, in First English could happen as the regulatory process drags on.

And we do not think we could make out a procedural due-process, or an equal protection violation, for mere honest error.

We think that, therefore, the fundamental predicate of this notion of abuse of process as a constitutional tort, is that the abuse be knowing, intentional and deliberate; and that's what we seek to be able to prove at trial.

Unidentified Justice: So there would be a defense in this case if the Secretary put on evidence that he got bad staff advice; he thought he was doing something reasonable; so that would be a complete difference?

Mr. Tribe: Well, in Harlow v. Fitzgerald, the Court spelled out really the contours of that defense: if it would have been in good faith and a reasonable person could have thought he was complying, it was constitutional.

Unidentified Justice: Well, that's an immunity.

I'm saying there would be an absence of a violation rather than an immunity.

Mr. Tribe: There may well be.

There may well be in the two, sometimes, though not always... certainly not in Stanley... sometimes coalesce.

But the concern that officials not move with great trepidation, fearing that every error of judgment in running a massive bureaucracy may expose them to liability, is quite well-dealt with by Harlow v. Fitzgerald immunity.

Unidentified Justice: And is emotional distress recovery lie at the core of this violation that you posit?

Mr. Tribe: Well, Justice Kennedy, I think emotional distress and other kinds of consequential damages lie at the core.

Certainly in Carey v. Piphus, emotional distress is separately, judicially, cognizable if provable.

And in the Flores case in the Ninth Circuit, that was at the heart of it.

But let me return for a moment, if I might, to Justice O'Connor's question about Bush v. Lucas, because I think there is a deeper irony here, in that making the magnitude of the system, its complexity a special factor counselling hesitation under Bush, if you go back to the majority opinion in Bivens and the Justice Harlan's concurrence, both of those opinions stressed that damage liability is especially appropriate for federal officers because of how much power they can wield; how many people they can hurt.

It inverts, I think, the logic in Bivens to say that the more people an official can hurt, the less a court should worry about ordinary garden-variety compensation and deterrence.

The fact is that Petitioners in this case were in a position to inflict more injury without ever getting out from behind their desks, than the agents in Bivens could inflict by breaking into Bivens' home.

You don't have to send agents to grab the social security checks that Solicitor-General Fried says he's not really sure are property; or to repossess the groceries and the medicines that were purchased with those checks.

They didn't have to do that.

All they had to do was put in place arbitrary quotas that pay no attention to the evidence; and send a functionary out with a computer-generated postcard to someone like Mr. Chilicky, who is recovering from open-heart surgery telling him,

"you're fine. "

"Go back to work; you're a dead-beat. "

I don't think it's too speculative to say that that is stigmatizing.

Now, the fact that, when Mr. Chilicky, when recovering from open heart surgery might be able... and after all, he did join a lawsuit quite early... might be able to seek some other form of judicial relief... does not really bear on--

Unidentified Justice: But any time someone is denied workmens' compensation benefits; disability benefits; because the Agency says,

"Well, your claim of disability really hasn't been proven, that's stigmatizing? "

Mr. Tribe: --No, Chief Justice Rhenquist.

My suggestion is that, if they deliberately set out to send that kind of message to people without regard to whether they really are disabled, then in that case it is plausible to say that this is not just an "adverb" of constitutional import; it is a deliberately-inflicted stigma.

Unidentified Justice: Well, but to say it's deliberately inflicted would be right; but to say it's a stigma is something else, I think, because I thought our cases used the word, "stigma" in the sense of something that is generally recognized perhaps as a badge of obloquy or something like that.

And I just don't think that a determination that you're no longer disabled carries that connotation.

Mr. Tribe: Well, some might regard it as good news to be told that you are no longer disabled, but others might say that if they spent their working lives putting into a system, and are then told that they're lying about their disability, which is what this message is, it might be stigmatizing.

But I'm not sure this bears on the question whether there should be a Bivens action.

Unidentified Justice: I'm not sure it bears on a question of what the damages ought to be either.

Once again, the obloquy, if that's what it is, is the same whether it was done intentionally or not.

The obloquy would be the same if some ALJ just simply decided the facts wrong.

And the fellow that's--

Mr. Tribe: Well, of course the ALJ--

Unidentified Justice: --the emotional distress; the trauma; is the same; your client is lying in this hospital bed; he gets exactly the same news; and you're telling us that in the one case, if he sues on a Bivens theory, he's entitled to consequential damages; whereas under the statute, where the same thing happens as far as the effect on him is concerned, all he's entitled to is to get the benefits that were denied.

That's seems to be a strange system.

Mr. Tribe: --Justice Scalia, let me... in fact, that does not sound so sensible.

Let me recall this Court's decisions in Daniels and Davis... a prisoner slips on a pillow and is badly injured.

The injury feels the same whether the pillow as left there negligently or whether it was left there in a deliberate decision to "get" the prisoners.

This Court says that that difference is the very difference that, under the Constitution, draws a line between the existence of a 1983 action, and the fact that it's simply a misfortune.

Unidentified Justice: That may be quite true, but then you import the term, "stigma" as if that somehow adds to the fact it's been a deliberate violation of the Constitution.

Mr. Tribe: Mr. Chief Justice, if I am understood as suggesting that stigma retroactively colors the existence of a violation, I don't mean to be suggesting that.

And it's somewhat premature to talk here, I think, about the precise damages that can be proven.

After all, in order to get to that stage, one has to recognize that the threshold... and answer one way or the other to the question whether there is an implied cause of action at all for damages?

And then one can figure out what the damages are.

Part of what I think is--

Unidentified Justice: That's what we're talking about damages.

We're talking about damages; not whether there is a cause of action.

That's why the prison example you give isn't really parallel.

Yes, whether there is a constitutional violation or not may well depend on the intent; but what intelligent damages are; what we as courts should determine are intelligent damages, it seems to me is no different in the case where it's intentional and where it's not intentional.

The harm suffered by the individual is quite the same.

Mr. Tribe: --Well, certainly the harm... for example, if monthly benefits needed to purchase medicines are withheld, once you've crossed the threshold of saying that they were withheld as a result of a deliberate violation, then in calculating the damage, the lost health... which will have nothing to do with the number of dollars that the government saved by not paying for the medicine, may be quite right, Justice Scalia.

Most of the damage at the end of the day will be the same, the medical, quantifiable damage.

Whether there was a constitutional abuse that led to the problem or not.

That is always the case, I think, in drawing the line.

If, for example, in Bivens, they had entered the home in good faith, subject to a Malley v. Briggs kind of immunity, and had proceeded when there to do exactly the same kinds of things that they did, from the point of view of the person who occupied that home, it might have felt just the same.

But since they would not have violated the Constitution the Bivens remedy would not be available.

That's really not unique to this situation: I think that observation goes to the question whether Bivens itself should somehow be overruled.

And I don't think that any argument has been made here that it ought to.

The only argument that's been made really is that somehow this is more like Bush v. Lucas.

But what was peculiar in Bush v. Lucas, and absent here, was the close relationship between federal employer and federal employee, which led Congress over a 60-year period continually to revisit the area and provide closely calibrated remedies; that is, if someone were fired as part of an efficiency reorganization, even though himself perfectly innocent: no remedy.

A decision was made for impermissible reasons not to hire him, there would be a limited remedy, a petition to the OSC.

If he was demoted or fired abusively the remedy would be greater.

There is no evidence at all within this area Congress has calibrated the decision to return the benefit to the wronged; indeed, the Solicitor-General's argument about Mathews v. Eldridge proves the opposite.

The point about Mathews v. Eldridge is that there was no violation from the mere mistaken termination of benefits.

As this Court held in Mathews v. Eldridge, Title II, as opposed to Title XVI, the Constitutional requirement that the risk error be kept within acceptable bounds, is fully met by a post-deprivation mechanism for correction; it's very much like the provision of just compensation for a taking.

The taking doesn't violate the Constitution as long as the compensation is provided.

It's strange the language, as well as an understanding of what Congress was doing to say that the mechanism for internal correction requires simply to keep the ship within the bounds of Mathews v. Eldridge is somehow a correction, a remedy, for quite separate constitutional abuse.

The very fact that--

Unidentified Justice: May I ask you one more question?

Mr. Tribe: --Yes?

It's a question about the deliberate element of your tort, because I really haven't been able to think it through: when you say "deliberate", do you mean that they just... they intended that people would not get benefits the statute entitled them to; or that they deliberately violated some constitutional procedure?

What is the deliberateness here?

The notion is that, fully-knowing, a significant number of the persons that they would terminate under these quotas were deserving, and would, if they pursued reinstatement and retroactive benefits, be likely to succeed, nonetheless, they decided for fiscal or other reasons, knowing that this had no relationship to particular evidence in the case, to impose and enforce these quotas... whether they also had to have it in their heads that this Court in 1994 in the Hertado case said that such arbitrary action violates the Constitution, I'm not sure.

I suspect that, in order to be liable of deliberate constitutional abuses of this kind, officials do not have to couch their improper intent in constitutional terms; but they would surely, though I'm sure that this is somewhat of a different issue, the Harlow v. Fitzgerald defense, if they acted in an objectively reasonable belief, that what they did comported with the requirements of the Constitution.

The suggestion that the bureaucratic apparatus of the social security system is too complex and too large to be subjected to a system of judicially-developed, quite ordinary remedies, is one that might be made to Congress, as it has been; but when it was made to Congress... when Petitioner Schweiker, for example, joined other Cabinet members in urging Congress to get rid of Bivens it's striking that he did not say, or even suggest, that those who are injured through what he described as "constitutional torts" in abusive terminations, ought to be left without any damages at all.

The suggestion rather was that there should be damages from the United States Treasury; the precise measure of those damages is a question for a different day.

And even that Congress resisted.

So the idea that, if you look at Congress not only laterally over time, but you find some implicit congressional determination, that the ordinary judicial approach of after-the-fact damages for deliberately inflicted harm in violation of the Constitution, the idea that one can find a congressional mechanism--

Unidentified Justice: Have you computed the realistic exposure of the defendants in this case, assuming you're right?

Mr. Tribe: --Justice Stevens, the suggestion of the Solicitor-General that it's in the billions of dollars, I think assumes the capacity of proof on the part of Respondents, that in my wildest imagination, I would not assume.

It seems to me that if the problem--

Unidentified Justice: What is the damages?

How much do they pray for?

Mr. Tribe: --They pray for at least $10,000 each against each Respondent.

Unidentified Justice: And how many members of the class?

Mr. Tribe: It's not a class action.

There are remaining three and only three Respondents.

They are people in their fifty's and sixties; the class is not a certified class.

So that the problem... I mean, I suppose one could try to compute what would happen under all of the Bivens remedies authorized by this Court if the millions of people who could potentially sue were all to sue the government, it would be staggering.

But the suggestion of an avalanche of liability is rather belied; as I understand it, in all of the years since Bivens was decided in 1971, there have been a grand total of some two dozen, as of several years ago, of actual damage recoveries under Bivens.

It's not so easy to prove that government officials deliberately set out to violate your constitutional rights.

And I wouldn't be too sanguine about the ability of people to prove that in a way that would pose grave threats for the fiscal stability of the government.

But if such threats were posed, it is the Congress that has the power of the purse; it is Congress who can decide whether deliberately abusive officials should be indemnified; and Congress who could put realistic caps on damage recovery.

But in the absence of such action by Congress, the course on which this Court embarked in 1971 in Bivens seems to me not really to stop short of this case.

It seems to me Judge Friendly was right in recognizing that cases like this do not arise under the Social Security Act; but arise under the Constitution; it seems to me that the traditional recognition that abuse of power is quite separate from material things that one happens to have lost; points to Bivens in this case; and not to Bush v. Lucas.

Bush, Stanley, Chappell, deal with special matters with special status.

Chief Justice William H. Rehnquist: Your time has expired, Mr. Tribe.

Mr. Tribe: Thank you, Mr. Justice.

Chief Justice William H. Rehnquist: Thank you, Mr. Tribe.

General Fried, you have 12 minutes remaining.

ORAL ARGUMENT BY CHARLES FRIED ON BEHALF OF PETITIONERS -- REBUTTAL

Mr. Fried: First it's important to note that Judge Friendly's decision in Ellis preceded Bush v. Lucas; and I don't think he would have decided the case the same way after this Court's guidance in Bush v. Lucas.

Second, I would like to call attention to the third sentence of 405(h),

"No action against the United States, the Secretary, or any office or employee thereof, shall be brought under Section 1331 to recover on any claim arising under this subchapter. "

Unidentified Justice: Well, Mr. Fried, do you think the Court gave that less than a literal reading in Bowan against Michigan Academy?

Mr. Fried: The Michigan Academy case is very important on that point because the Court recognized that it had... that it was rowing uphill; but that it was willing to do so because, had there not been a remedy that was implied under 1331, there would have been no way for those particular claims to be brought before any court whatsoever.

And that, this Court said, was weighing powerfully in their interpretation; second, it found a little bit of leeway because in any event, I believe the Court said, in any event, we are not operating directly under 405(h) in the third sentence; but only by its incorporation through Section 1395, that was a Part B of Medicare case.

That would seem to me to suggest that, if you were square in the middle of 405(h), rather than in one of those peripheral applications dragged in by reference that you would not have had the same conclusion.

The attempt to do in rungs around the third sentence goes back to Weinberger against Salfi, the attempt to say, well, this is a declaratory judgment; well, this is procedural; this is prospective-only.

Each time the Court has said, look, what you are doing is something which has to do with getting benefits.

These people didn't slip and fall on the steps of the Social Security office and bring an action for that reason; they are bringing an action because something that happened in respect to the granting of benefits.

And I ask myself, if Congress wanted to proscribe 1331 jurisdiction for a situation like this, how much more really could it have spoken?

Should it have said,

"and we mean Bivens, too? "

So I think 1331... I think that 405(h) is quite clear on this point; I do think that it's important to have a little perspective on this case, particularly given the very powerful presentation of the factual context.

First, the respondents at page 6 of their brief say that there are perhaps 200,000 people whose benefits were unjustly terminated and then later reinstated.

But the perspective I would like to suggest is a different one.

There is in the United States no general system at the national level of income maintenance.

There is food stamps; there is AFDC; there is unemployment compensation, which is time-limited; and then there is social security.

In times of economic dislocation in the late '70s and early '80s, when most of these cases arose, were such times, there is tremendous pressure on the system and on Congress to somehow stretch what is a rather gappy safety net to cover more and more serious cases which seem to fall through.

How to respond to those pressures is a serious problem.

I do not think it is sensible to respond by making the Cabinet Secretary personally liable as is being sought to be done in this case.

If there are no further questions, I think the Court for its attention.

Chief Justice William H. Rehnquist: Thank you, General Fried.

The case is submitted.

Unidentified Justice: The honorable court is now adjourned until tomorrow at ten o'clock.