§ 1983 was not so persuasive as to apply in Bivens actions. It noted that the Federal Tort Claims Act had been amended to permit recovery against the United States for the intentional torts of its law enforcement officers. See : 28 U.S.C. § 2680(h). In the view of the Dellums Court, the policy underpinnings of these amendments, i.e., loss spreading and ensuring a viable source of compensation, should control in Bivens actions as well. Thus, common law principles permitting recovery against the District under respondeat superior were held applicable to Bivens actions. Id. at 220-225.
Our review of recent developments in the law of constitutional torts convinces us that Dellums is no longer controlling. Three significant changes in the law under § 1983 have undercut Dellums continuing viability. First, under the 1979 amendments, § 1983 was made applicable to the District of Columbia. See : Pub.L. 96-170, 1979 U.S. Code Cong. and Am. News, p. 2609. Thus, decisions under § 1983 now carry greater precedential value in Bivens actions involving the District than when Dellums was decided. Second, as noted above, it is now beyond doubt that a municipality may not be held vicariously liable for the acts of its agents under § 1983. See : cases cited supra at 107. Finally, loss spreading and providing a deep pocket have been rejected as bases for holding a municipality liable under § 1983 on a theory of respondeat superior by the Supreme Court, Monell v. Dept. of Social Services, supra; Owen v. City of Independence, 445 U.S. 622, 655 n.39, 63 L. Ed. 2d 673, 100 S. Ct. 1398, n.39 (1980), and by other courts that have addressed the issue. Dean v. Gladney, 621 F.2d 1331, 1337 n.15 (5th Cir. 1980); Molina v. Richardson, 578 F.2d 846, 853 (9th Cir. 1978).
The rejection of respondeat superior in § 1983 counsels strongly for its rejection in Bivens actions. In the context of Fourth and Fifth Amendment violations, there is little difference between an action under § 1983 and a Bivens action. It would be anomalous to permit a plaintiff to recover on a respondeat superior theory in a Bivens action when recovery on the same theory is foreclosed under § 1983. When faced with this anomaly, courts have unanimously rejected the use of respondeat superior in Bivens actions Dean v. Galdney, supra; Ellis v. Blum, 643 F.2d 68 (2d Cir. 1980); Molina v. Richardson, supra; Cale v. City of Covington, 586 F.2d 311 (4th Cir. 1978); Jones v. City of Memphis, 586 F.2d 622 (6th Cir. 1978); Daughtry v. Arlington County, 490 F. Supp. 307 (D.D.C. 1980). Indeed, even the court that decided Dellums has questioned the continued use of respondeat superior in Bivens actions. See: Love v. Budai, 214 U.S. App. D.C. 242, 665 F.2d 1060, 1064, n.6 (D.C. Cir. 1980).
We find the reasoning of these courts persuasive and hold that recovery may not be had against the District of Columbia in a Bivens action on a respondeat superior theory.
In sum, we conclude that this Court has jurisdiction to hear plaintiff's constitutional tort claims. However, plaintiff may not proceed against defendants Barry or the District of Columbia on a theory of respondeat superior.
Accordingly, it is this 23rd day of June, 1982
ORDERED that the motion of the defendants to dismiss for lack of jurisdiction is hereby DENIED; and it is
FURTHER ORDERED that the motion of defendant District of Columbia and defendant Barry to dismiss is hereby GRANTED and the action is dismissed as to them.