The Fifth Circuit had upheld a Bivens claim for a Fifth Amendment violation in Davis v. Passman, 544 F.2d 865, 874 (5th Cir. 1977); however, this panel opinion was reversed en banc in Davis v. Passman, 571 F.2d 793 (5th Cir. 1978). The Second Circuit has held there is no authority under Bivens for a claim of money damages against the United States for a violation of the Fifth Amendment. Duarte v. United States, 532 F.2d 850, 852 (2d Cir. 1976). In City of Kenosha v. Bruno, 412 U.S. 507, 514, 93 S.Ct. 2222, 2227, 37 L. Ed. 2d 109, 117 (1973), by remanding for consideration of whether the jurisdictional amount had been met, the Supreme Court implied that actions could be brought under section 1331 for violations of the Fourteenth Amendment. 222 Consequently, the Second, 223 Fourth, 224 Fifth, 225 Seventh, 226 Eighth 227 and Ninth228 Circuits have recog nized that Bivens claims can be based on Fourteenth Amendment violations. The Third Circuit has declined to decide the issue, Patzig v. O'Neil, 577 F.2d 841 (1978). In Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977), the court stated: Bivens teaches that the existence of an effective and substantial federal statutory remedy for the 222. See generally Hunt, Suing Municipalities Directly Under the Fourteenth Amendment, 70 N.W. L. Rev. 770 (1975). 223. Gentile v. Wallen, 562 F.2d 193, 196-97 (2d Cir. 1977); see Brault v. Town of Milton, 527 F.2d 730, 734 (2d Cir. 1975), rev'd en banc on other grounds, 527 F.2d 736 (2d Cir. 1975). 224. Cox v. Stanton, 529 F.2d 47, 50-51 (4th Cir. 1975). 225. Reeves v. City of Jackson, Mississippi, 532 F.2d 491, 495 (5th Cir. 1976); Roane v. Callisburg Independent School District, 511 F.2d 633, 640 (5th Cir. 1975). 226. Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716, 718-19 n. 7 (7th Cir. 1975), cert. denied, 425 U.S. 916, 96 S.Ct. 1518, 47 L.Ed.2d 768 (1976). 227. Owen v. City of Independence, Missouri, 560 F.2d 925, 932 (8th Cir. 1977). 228. Gray v. Union County Intermediate Education District, 520 F.2d 803, 805 (9th Cir. 1975). plaintiffs obviates the need to 564 F.2d at 1024-25. As a result of the holding in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that municipalities are not "persons" for purposes of section 1983, plaintiffs have sought to bring actions against them under section 1331 and Bivens for actions of their employees. 229 The recent overruling of this aspect of Monroe in Monnell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), holding that local governments are "persons" for purposes of section 1983, leaves open the question whether the extent of liability of local governments differs under the two sections. Monell the Court clearly decreed that municipalities would not be liable under section 1983 on a respondeat superior theory. 436 U.S. at 692, 98 S.Ct. at 2036, 56 L.Ed.2d at 637. The Court indicated that a municipality would be liable only where the unconstitutional action "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." 436 U.S. at 690, 98 S.Ct. at 2036, 56 L.Ed.2d at 635.230 In The circuits have been proceeding with caution in imposing municipal liability under section 1331, although the District of Columbia has applied the 229. See Note, Damage Remedies Agsinst Municipalities for Constitutional Violations, 89 Harv. L. Rev. 922 (1976). 230. See Section VIII,B supra for further discussion of Monell. 231 doctrine of respondeat superior. The effect of Monell on municipality liability under section 1331 remains to be determined. The Supreme Court had indicated that standards applicable to state officials in actions under section 1983 are applicable to federal officials in actions under Bivens and section 1331. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) stated: If respondent is correct in his contention that defamation by a state official is actionable under the Fourteenth Amendment, it would of course follow that defamation by a federal official should likewise be actionable under the cognate Due Process Clause of the Fifth Amendment. Surely the Fourteenth Amendment imposes no more stringent requirements upon state officials than does the Fifth upon their federal counterparts. We thus consider this Court's decision interpreting either Clause as relevant to our examination of respondent's claim. U.S. 424 U.S. at 702 n. 3, 96 S.Ct. at 1161 n. 3, 47 L. Ed. 2d at 414 n. 3. Butz v. Economou, 2894, 57 L.Ed.2d 895 (1978) stated: untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials. "232 On the other hand, the Court has declined to decide whether the limitations imposed by section 1983 are applicable to actions under section 1331. Mt. 231. Dellums v. Powell, 566 F.2d 216 (D.C. Cir. 1977). 232. Accord, Brawer v. Horowitz, 535 F.2d 830, 834 (3d Cir. 1976) (immunity of state prosecutor under section 1983 available to federal prosecutor under Bivens); Ervin v. Ciccone, 557 F.2d 1260, 1262 (8th Cir. 1977) (good faith immunity of Wood v. Strickland, 420 U.S. 308 (1975) for state officials available to federal officials). Healthy City School District Board of Education v. [W]here an action is brought under 429 U.S. at 279, 97 S.Ct. at 572, 50 L. Ed. 2d at 478. The Court declined to decide whether the limitations contained in section 1983233 are applicable to actions under Bivens and section 1331 since this issue had not been timely raised by the defendant. The Court noted that it had been the view of the district court that the limitations contained in section 1983 did not apply. The Court stated: "[W]e assume, without deciding, that the respondent could sue under § 1331 without regard to the limitations imposed by 42 U.S.C. § 1983." 429 U.S. at 279, 97 S.Ct. at 572, 50 L.Ed.2d at 479. Bivens stated: "The present case involves no special factors counselling hesitation in the absence of affirmative action by Congress." 403 U.S. at 396, 91 S.Ct. at 2004, 29 L.Ed.2d at 626. Brault v. Town of Milton, 527 F.2d 730, 734-35 (2d Cir. 1975), rev'd en banc on other grounds, 527 F.2d 736 (2d Cir. 1975) found that the defendant's status as a municipality was not such a special factor which would counsel hesitation. 233. Including the requirement that the defendant be a "person." The Third and Fifth Circuits have held that the defendant need not be a "person." Reeves v. City of Jackson, Mississippi, 532 F.2d 491, 495 (5th Cir. 1976); Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 44 (3d Cir. 1974), vacated and remanded on other grounds, 421 U.S. 983 (1975), on remand, 538 F.2d 53 (3d Cir. 1976) en banc, cert. denied, 429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 588 (1976). The First Circuit has declined to impose vicarious municipal liability under Bivens and section 1331. Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977) affirmed dismissal of plaintiff's claim against the defendant town based upon the action of a police officer in shooting and killing plaintiff's decedent in the course of an arrest. The court explained its approach to the question as follows: When there is a request for the It should carefully assess the posed remedy is inconsistent with an adequately protect the constitutional guarantee in question. 560 F.2d at 42. The court found the existence of a statutory remedy, section 1983, for claims against the persons directly responsible for the plaintiff's injury to be adequate. The court also considered the "Congressional determination that political subdivisions are not to be held liable in damages for violations of constitutional rights" as interpreted in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), to be relevant. 560 F.2d at 39. However, the court emphasized the limits to its holding: We emphasize the narrowness of our holding today. Were we faced with a case in which the municipality had ordered the constitutional violation, the application of the constitutional test could be different. Similarly, we express no opinion as to whether specific guarantees, e.g., the taking clause, might require a direct damages action against a policital subdivision. |