Trial Magazine

In 1971, the U.S. Supreme Court decided the landmark case Bivens v. Six Unknown Named Agents and resolved the question of whether an implied cause of action for damages existed under the Fourth Amendment against federal agents who exceeded their authority under that amendment.¹ Bivens involved agents of the then Federal Bureau of Narcotics (now the Drug Enforcement Agency) executing a warrantless arrest of Webster Bivens and a warrantless search of his apartment.²

Bivens alleged that the agents used excessive force during the arrest and that he was later subjected to a humiliating visual search at the police department.³ He sought damages for a constitutional tort (although his pleading did not expressly reference the Fourth Amendment) from each of the named defendants.⁴

Bivens’s case put front and center a question that, until that time, had remained unanswered—whether litigants could obtain damages against federal officials who violate their constitutional rights absent a statutory right of action authorizing the suit.⁵ The question was undoubtedly a significant one that raised substantial implications for the separation of powers and the contours of judicial authority. These concerns notwithstanding, the Bivens Court reasoned that the courts had the power to fashion remedies for invasions of federally protected rights and, consequently, Bivens’s complaint stated a valid cause of action under the Fourth Amendment.⁶

The Bivens Progeny

In the years that followed, the Court expanded the Bivens remedy to include certain claims arising under the Fifth and Eighth Amendments. Specifically, in Davis v. Passman, the Court reviewed a case in which a former employee (Davis) of a Louisiana congressman (Passman) claimed that he violated her Fifth Amendment right to due process when he fired her.⁷ Before firing Davis, Passman wrote a note explaining that, even though he knew Davis as an “able, energetic, and a hard, hard worker,” he considered it essential to have a man employed in her position.⁸

The Fifth Circuit ruled that Davis had no civil remedies under the Fifth Amendment due process requirement.⁹ Relying on Bivens, the Supreme Court reversed and held that a cause of action and damages remedy could be implied directly under the U.S. Constitution when the Fifth Amendment’s due process clause is violated.¹⁰

Subsequently, in Carlson v. Green, the Court expanded the Bivens remedy to include a claim that prison officials had violated an individual’s rights under the Eighth Amendment.¹¹ In that case, the mother of a deceased son (who had been a federal prisoner in Indiana) brought a case alleging that her son suffered fatal injuries because prison officials violated his Eighth Amendment rights by failing to render proper medical attention.¹²

On appeal, the Court held that a Bivens remedy was available even though the allegations could also support a suit against the United States under the Federal Tort Claims Act (FTCA).¹³ The Court found there were no special factors indicating that a remedy could not be implied in the absence of affirmative action by Congress and there was no explicit congressional declaration that people injured by federal officers’ violations of the Eighth Amendment may not recover damages from the officers.¹⁴

A Shift Away From Protecting Constitutional Rights

However, all good things must come to an end. The years following Davis and Carlson manifested judicial recoil against the continued expansion of Bivens. Indeed, in the next 11 cases to reach the Supreme Court raising a Bivens question, the Court declined to extend a Bivens cause of action against the named defendant.¹⁵

Ziglar v. Abbassi. The most critical of these decisions occurred in 2017, when the Court decided Ziglar v. Abbassi. Ziglar involved claims brought by various male, non-U.S. citizen plaintiffs (most of whom were Muslim and of Middle Eastern origin).¹⁶

The plaintiffs had been detained by the government as persons of interest in the investigation of the Sept. 11, 2001, attacks.¹⁷ As a result of their detention, the plaintiffs brought claims against a number of federal officials asserting various violations of federal law.¹⁸ For example, the plaintiffs claimed that the defendants deprived them of their due process and equal protection rights due to the restrictive conditions under which they were confined.¹⁹ They also alleged that the defendants violated their Fourth and Fifth Amendment rights by subjecting them to frequent strip searches.²⁰

The question of whether the plaintiffs could assert Bivens claims eventually worked its way to the Supreme Court. Justice Anthony Kennedy, writing for the Court, noted that the prevailing judicial philosophy had shifted since Bivens, Davis, and Carlson were decided.²¹ Namely, those cases were decided with an assumption that it was within the Court’s function to fashion remedies needed to effectuate a statute’s purpose.²² Now, however, the Court perceived a need for far greater caution in this regard.²³ Consequently, it held that it would only look to legislative intent in analyzing whether a plaintiff could seek damages for a violation of federal statutory law.²⁴

Therefore, unless the statute in question evinced a congressional intent to create a private cause of action, the Court would not imply such an action through judicial mandate.²⁵ And with respect to alleged constitutional violations, the Court noted that expanding Bivens to new or different types of violations from those previously articulated in Bivens, Davis, and Carlson was disfavored judicial activity.²⁶ Ziglar made clear that, if a damages remedy was to exist for any alleged constitutional violation occurring in a “new context” outside those decisions, it would most likely have to be provided by Congress.²⁷

Although the holding in Ziglar was not inherently remarkable, the decision was nevertheless the Court’s most significant contribution to the Bivens dialogue in nearly 30 years. Ziglar constructed the following test for determining whether a claim arises in a new Bivens context:

If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.²⁸

Egbert v. Boule. Finally, and most recently, the Court decided Egbert v. Boule last year.²⁹ If Ziglar was viewed as the proverbial nail in Bivens’s coffin, Egbert might be thought of as the Court’s cathartic burying of the casket.

The decision involved a lawsuit by Robert Boule, the owner of a bed-and-breakfast near the U.S.-Canadian border, against Erik Egbert, a U.S. Border Patrol agent, for violating his First and Fourth Amendment rights.³⁰ Boule alleged that Egbert assaulted him on his property without a warrant and retaliated against him for filing a complaint by, among other things, reporting Boule to other federal agencies, such as the IRS, to baselessly investigate him.³¹

Given Egbert’s conduct, Boule filed a Bivens suit.³² The Supreme Court reversed the lower court’s decision to extend Bivens to Boule’s claims, holding that Congress was better suited to create remedies in a border-security context and that the administrative grievance process available to Boule was an alternative remedy that foreclosed Bivens relief.³³

Justice Clarence Thomas, writing for the Court, noted in not-so-subtle terms that the creation of a Bivens remedy was outside the province of the courts “in all but the most unusual circumstances.”³⁴ He explained that if there was even a single rational reason to believe that Congress, rather than the courts, was better positioned to fashion a damages remedy for any particular invasion of federal rights, a Bivens action would be categorically unavailable to the plaintiff, and a rational reason to defer the remedies question to Congress would be present “in most every case.”³⁵

If this prefatory language left any doubt about the viability of Bivens claims in a post-Egbert era, the Court’s subsequent reasoning did not. Indeed, the Egbert decision went on to all but abandon prior analytical guideposts in favor of a legal test guaranteed to produce a certain result: the end of Bivens.

On this front, Justice Thomas noted that the Court’s precedents historically recognized a two-part test for determining whether the Court would imply a new Bivens claim: whether the Bivens claim presents a new context from those previously decided, and if so, whether there were any special factors indicating that the judiciary was even arguably less equipped than Congress to weigh the costs and benefits of recognizing a new Bivens claim.³⁶

Especially following Ziglar, this two-part test already set the hurdle higher than most plaintiffs could meet, and the Court’s opinion acknowledged the insurmountable nature of this hurdle given the demands of the second requirement in particular. The Court observed that “if there is even a single ‘reason to pause before applying Bivens in a new context,’ a court may not recognize a Bivens remedy.”³⁷

The Ziglar test, however, left at least a glimmer of hope that plaintiffs could theoretically avoid the special factors analysis if they could demonstrate that the claim being asserted did not raise a new context—an already exceedingly difficult task under the test articulated in Ziglar. However, Egbert took things a step further by collapsing the two-part test into a single question: “whether there is any reason to think Congress might be better equipped to create a damages remedy.”³⁸

Of course, conceptualizing “any reason” that Congress merely “might” be better equipped than the judiciary to create a damages remedy likely would not require heavy lifting. There is always a hypothetical reason one entity “might” be better suited to a given task than another, even if there are 99 countervailing reasons pointing to the opposite conclusion. It is a question that is carefully engineered to be 100% effective in producing the result the Court has been angling for over the last several years—the end of Bivens.

But Egbert did not stop there. The opinion goes so far as to pre-announce a universal special factor that “forecloses relief”: that the uncertainty inherent in a court’s ability to predict the systemwide consequences of recognizing a cause of action under Bivens itself is a special factor conclusively precluding relief.³⁹

Takeaways for the Future of Bivens

There are several practical takeaways from Egbert on the current state of Bivens: It is dead as a practical matter. The only hope for recovery under Bivens in the present age are claims that are factually and legally indistinguishable from either Bivens, Davis, or Carlson. But there are also some potential bright lights for plaintiffs.

The Court’s hostility toward Bivens can become a new weapon for plaintiffs in the fight against qualified immunity.

Disconnect with the Court’s actions on qualified immunity. The Court’s hostility toward Bivens can become a new weapon for plaintiffs in the fight against qualified immunity, and trial lawyers should be looking for ways to draw conceptual parallels between the Court’s creation of Bivens and its creation of qualified immunity.

For example, in Egbert, Justice Thomas remarked that it was unclear whether the courts ever had the power to create a Bivens remedy at all.⁴⁰ If the creation of a Bivens remedy is rightly understood as an invasion of the legislative function, there are good reasons to argue that the Court’s creation of qualified immunity was equally improper under the separation of powers.

Indeed, Justice Thomas himself remarked as much in his concurrence in Ziglar.⁴¹ Of course, the present Court is very supportive of qualified immunity and seems unaware of the fundamental conceptual dissonance between its qualified immunity decisions and Bivens decisions. Nevertheless, to help spur positive evolutions in the law, it is worth raising this argument that a future Court may seize on to right its prior wrongs.

Alternative remedies for injured plaintiffs. When the tortfeasor is an employee or agent of the federal government, look for alternate remedies to aid your clients. The FTCA provides one outlet for relief, but Congress has created many statutory rights of action that remain under the radar. For example, plaintiffs can pursue individual causes of action for medical negligence under the FTCA, and certain prisoners who have experienced discrimination can pursue suits under the Rehabilitation Act of 1973 or the Americans with Disabilities Act.

It is crucial for plaintiff attorneys to keep sharing viable alternative ways to obtain justice for clients harmed by federal actors to ensure accountability and access to potential remedies for others.

Isaac McBeth is a partner and Darrell Getman is an associate at the Halperin Law Center in Glen Allen, Va. They can be reached at Isaac@hlc.law and Darrell@hlc.law, respectively. The authors thank Mark Rasmussen, a law student at the University of Richmond School of Law, for his invaluable contributions to this article.

Notes

1. Prior to Bivens, decisional law established the availability of injunctive relief against federal officials who threatened or were otherwise engaged in continuing violations of a petitioner’s constitutional rights. Likewise, the law recognized remedies for constitutional violations by officials acting under federal authority in the criminal context, such as the exclusionary rule and writs of habeas corpus.
2. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971).
3. Id. at 389–90.
4. Id. at 390.
5. Id. at 389. The Court had previously deferred this issue in Bell v. Hood, 327 U.S. 678, 684 (1946).
6. Bivens, 403 U.S. at 397.
7. Davis v. Passman, 442 U.S. 228, 230 (1979).
8. Id.
9. Id. at 232.
10. Id. at 230.
11. Carlson v. Green, 446 U.S. 14, 20 (1980).
12. Id. at 16.
13. Id. at 23.
14. Id. at 19–20.
15. Chappell v. Wallace, 462 U.S. 296, 305 (1983); Bush v. Lucas, 462 U.S. 367, 390 (1983); United States v. Stanley, 483 U.S. 669, 686 (1987); Schweiker v. Chilicky, 487 U.S. 412, 428 (1988); FDIC v. Meyer, 510 U.S. 471, 486 (1994); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001); Wilkie v. Robbins, 551 U.S. 537, 562 (2007); Hui v. Castaneda, 559 U.S. 799, 812–13 (2010); Minneci v. Pollard, 565 U.S. 118, 131 (2012); Ziglar v. Abbasi, 582 U.S. 120, 149 (2017); Hernández v. Mesa, 140 S. Ct. 735, 746–47 (2020).
16. Ziglar, 582 U.S. at 128.
17. Id.
18. Id. at 129–30.
19. Id. at 129.
20. Id.
21. Id. at 132–33.
22. Id. at 132.
23. Id. at 132–33.
24. Id. at 133.
25. Id. at 133.
26. Id. at 135.
27. Id. at 140, 149.
28. Id. at 139–40.
29. Egbert v. Boule, 142 S. Ct. 1793 (2022).
30. Id. at 1800–02.
31. Id. at 1801–02.
32. Id. at 1802.
33. Id. at 1809.
34. Id. at 1800.
35. Id. at 1803.
36. Id.
37. Id. (emphasis added).
38. Id.
39. Id. at 1803–04.
40. Id. at 1803.
41. Ziglar, 582 U.S. at 159–60 (Thomas, J., concurring).