487 U. S. 412
June 24, 1988
For a few years in the early 1980s, the Social Security administration was denying meritorious disability claims left and right. Congress finally stepped in to correct this by passing two different laws in consecutive years. Chilicky and others who temporarily lost their benefits during this era were not satisfied with the remedies provided by Congress. They sought a Bivens remedy – a judicially created cause of action that allowed for citizens to get monetary judgments against government agents who violated Constitutional rights. The question was whether a Bivens remedy should be created to address the alleged Due Process violations of the Social Security administration.
The Court ruled 6-3 that such a remedy would be inappropriate. O’Connor stressed that the Court should treat cautiously when creating new Bivens rights. They should not be created when Congress is capable of addressing the harm, and has decided against allowing redress. O’Connor said that Congress had considered the problem of erroneously denied disability claims several times in the 1980s, and never once hinted that claims against government agents themselves were the solution. Furthermore, allowing claims to proceed would bog down a Social Security administration that was already deeply bogged down in its duties. In a footnote, O’Connor dismissed as moot the question of whether one statute explicitly barred the creation of a Bivens remedy for Social Security violations.
In a concurring opinion, Stevens said that the statue referred to in the footnote did not explicitly bar a Bivens remedy. Brennan, joined by Marshall and Blackmun, was aghast at the majority’s contention that mere backpay of erroneously denied benefits was sufficient compensation for the harms suffered by Chilicky. They deserved extra remedies for the horrendous pain and suffering they endured before getting their disability payments back. Brennan could find no policy reasons for not creating a Bivens remedy. Congress had not, by its silence, communicated an intent to bar a Bivens remedy. Nor was Social Security a domain in which the expertise of Congress ought to be deferred to. He was also unsympathetic to the argument that Bivens suits would bog down the agency.
In the other Bivens case I’ve reviewed so far, I felt the majority was wrong to not allow for the claim. This one, I’m not so sure about. You do feel sorry for what Chilicky endured, but I’m not certain Bivens should be extended to cases where the right violated is partially government created. There is no unadorned Constitutional right to disability payments – it’s very much also a statutory one. I think that’s the place I’d draw the line.