The recognition of the Bivens-style action, or the constitutional tort, has been followed by the Supreme Court's recent assertion that these actions will be unavailable where Congress has established an elaborate remedial scheme that should not be augmented by a judicial remedy. The author of this article posits that this necessary limitation on Bivens actions may produce an ironic result in the area of public personnel. The author reasons that those employees whom Congress has determined warrant no statutory protection may be permitted to pursue more lucrative judicial remedies than those employees whom Congress has sought to protect. The author examines the development of the constitutional tort and explores the possible Bivens actions and defenses that will be available in the public personnel field. When statutory remedies are insufficient to preclude Bivens actions, the author concludes that Congress must act to retain efficiency and fair treatment in the civil service.
Smith, Barry F.
"Bivens Actions for Federal Employees in the Aftermath of Bush v. Lucas: Which Remedies for Whom?,"
University of Baltimore Law Review: Vol. 14:
3, Article 2.
Available at: https://scholarworks.law.ubalt.edu/ublr/vol14/iss3/2