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Bivens, Uh-huh. What Is It Good For? Absolutely Nuthin’ – Update for August 23, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BIVENS – KILLING IT SOFTLY

I was just graduating from high school when the Supreme Court ruled in favor of Webster Bivens, who sued federal agents after they broke into his apartment without a warrant and arrested him on a drug charge (that was promptly dismissed by a magistrate judge).

policeraid170824In the 50-year-plus interlude since I turned 18, Webb Biven’s handwritten lawsuit seeking monetary damages against the agents who kicked down his door became famous in legal circles as Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. Webb has quite accidentally lent his name to all lawsuits seeking money for federal officials’ and agents’ misconduct, widely known as “Bivens actions.”

I now carry a Medicare card. The high school from which I graduated no longer exists. And when reading this week’s 3rd Circuit’s decision in Kalu v. Spaulding, I keep recalling Edwin Starr’s 1969 piece War, albeit with different lyrics:

Bivens, uh-huh, what is it good for?
Absolutely nuthin’.
Say it again, y’all.

Or maybe Roberta Flack: Bivens – Killing It Softly.

Congress has authorized federal money-damages lawsuits against state and local officials and employees for the violation of one’s constitutional rights in 42 USC § 1983. When Webb argued in 1971 that there must exist a similar right to sue federal officials and employees for damages when they run roughshod over a person’s constitutional rights, the Supreme Court obliged him, finding in the Constitution an implied right to do to federal officials what § 1983 lets one do to state and local officials.

In the decade following the Bivens decision — which authorized suits seeking damages for 4th Amendment violations — the Supreme Court approved a Bivens damage remedy for a congressional staffer’s gender discrimination claim under the 5th Amendment (Davis v. Passman) and for a federal prisoner’s inadequate-care claim under the 8th Amendment (Carlson v. Green).

However, 1980 was the high-water mark for Bivens. Since then, citing the Constitution’s separation of legislative and judicial power, SCOTUS has consistently narrowed the grounds that can support a Bivens actions.

“At bottom,” the Supremes said two years ago in Egbert v. Boule, a decision that drove a stake through the heart of Bivens, “creating a cause of action is a legislative endeavor.” Thus, litigants are denied the right to bring a Bivens action in “a new context.”

bivens240823If it ain’t a 4th Amendment “kick-down-the-door” suit, a member of Congress with wandering hands, or an 8th Amendment inadequate care claim, Bivens is good for absolutely nuthin’.

This week, the 3rd Circuit demonstrated in a lengthy opinion just how dead Bivens is, making the casual reader wonder why the Supreme Court — which is not adverse to the death penalty — didn’t simply consign Bivens to the dustbin of history the way it did Roe v. Wade (another relic of my youth).

John Kalu, who was a federal inmate at the time, brought an 8th Amendment claim against a Bureau of Prisons correctional officer for sexually assaulting him on three occasions. John has since been released and thus has no remedy for the alleged offense except money damages. However, the Circuit held, “[h]eeding the Supreme Court’s recent and repeated warning that we must exercise ‘caution”’ before implying a damages remedy under the Constitution, we decline to extend the Bivens remedy to Kalu’s claims.”

The 3rd admitted that John’s Bivens claim for sexual assault was pretty close to the Carlson situation, where the Court allowed a Bivens action for the BOP’s failure to protect a prisoner from a sexual assault by another prisoner. But while admitting that “the distinctions between Kalu’s sexual assault claim and the one recognized in Carlson are perhaps small, at least in practical terms… given the Supreme Court’s expressed caution about extending the Bivens remedy, the new-context inquiry is easily satisfied here.”

The Circuit ruled that

the availability of an alternative remedial scheme through the BOP’s administrative remedy program, Congress’s repeated omission of a cause of action against individual officials in both the Prison Litigation Reform Act and the Prison Rape Elimination Act, and separation of powers principles are special factors counseling against extending Bivens liability to Kalu’s officer-on-prisoner sexual assault claim. As Egbert cautions, whether to supplement an existing remedial scheme with a damages action is a legislative determination that we are not allowed to ‘second-guess…’ We therefore hold Kalu’s 8th Amendment sexual assault claim… is ineligible for remedies under Bivens.

In Egbert, the Supreme Court indicated that if it had to decide Bivens today, it “would decline to discover any implied causes of action in the Constitution.” One wonders why the Supreme Court didn’t simply overturn Bivens, stare decisis be damned, and spare the judicial system and plaintiffs the steady drip inevitably leading to limiting Bivens to a meaningless singularity.

forcedsex161202One of the unanimous three-judge panel in Kalu was Judge Luis Restrepo, who also serves on the US Sentencing Commission. Although Judge Restrepo felt that Egbert required that he join the majority opinion, he wrote a concurring opinion delivering a blistering criticism of “the alarming reports of pervasive staff-on-inmate sexual abuse within the Bureau of Prisons and corresponding flaws in the administrative remedy process.”

Judge Restrepo noted that while the “Federal Prison Oversight Act, which President Joe Biden recently signed into law… provides much-needed safeguards, the provision of a civil legal remedy for survivors of staff-on-inmate abuse is notably absent from the text of the statute. This absence, Egbert cautions us, may lend ‘reason to think Congress might doubt the efficacy or necessity of a damages remedy’ in cases such as the one before us’.”

Uh-huh.

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US 388 (1971)

Egbert v. Boule, 596 US 482 (2022)

Davis v. Passman, 442 US 228 (1979)

Carlson v. Green, 446 U.S. 14 (1980)

Kalu v. Spaulding, Case No. 23-1103, 2024 U.S. App. LEXIS 21092 (3d Cir. Aug. 21, 2024)

– Thomas L. Root

Sentencing Commission To Take Measure of BOP – Update for August 29, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

“HOW ARE WE DOING? PLEASE TAKE THE FOLLOWING SURVEY…

It’s unlikely that the Federal Bureau of Prisons will be asking prisoners that question anytime soon. But someone might.

howwedoing230829At last week’s meeting, the U.S. Sentencing Commission said that in the coming year, it plans to assess how effective the BOP is in meeting the purposes of sentencing listed in 18 USC § 3553(a)(2). Those purposes include the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment and adequate deterrence, to protect the public and to effectively provide the defendant with needed training, medical care, or other treatment.

The Commission also plans to continue review of how the guidelines treat acquitted conduct for sentencing purposes. The Supreme Court recently denied review in a baker’s-dozen cases asking it to declare the use of acquitted conduct at sentencing to be unconstitutional. Three Justices cited the ongoing USSC study of the issue as a reason to hold off.

Other Commission priorities in the coming year include studying the career offender guidelines, methamphetamine offenses, sentencing differences for cases disposed of through trial versus plea, and sentences involving youthful individuals.

badfood230829Speaking of prisoner satisfaction, inmates should not expect any help if they are unhappy with the chow. Two weeks ago, the 10th Circuit ruled that an inmate claim that the BOP was tampering with the food it served him – in violation of the 8th Amendment’s ban on cruel and unusual punishment – presented a new application of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. The Circuit said that the existence of alternative remedies (the BOP’s administrative remedy route, no doubt) made a Bivens claim unavailable to the prisoner under last year’s Supreme Court decision in Egbert v. Boule.

Egbert drove a metaphorical legal stake into Bivens‘ heart, as the 10th’s decision in the prisoner food case makes clear. It’s easy enough to cluck one’s tongue over Prisoner Adams’ tainted food claim (like any prison food is edible), but a lot of serious Bivens claims died on Egbert’s hill.

US Sentencing Commission, Final Priorities for Amendment Cycle (August 24, 2023)

Adams v. Martinez, Case No 22-1425, 2023 U.S. App. LEXIS 21369 (10th Cir, August 16, 2023)

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US 388 (1971)

Egbert v Boule, 142 S.Ct. 1793, 213 L.Ed.2d 54 (2022)

– Thomas L. Root

Trick or Treat – Update for October 28, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, a little early Halloween…

TREAT: SENATE BILL AIMED AT HELPING PREGNANT PRISONERS

treat221028Not that introduction of a bill this late in the Congressional season is much more than symbolism, but legislation introduced a few weeks ago by Sens Amy Klobuchar (D-MN) and Susan Collins R-ME) aims to improve care in federal prisons for pregnant and postpartum women and their babies.

The Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act (S.5027) would establish care standards for federal facilities across the country, requiring access to medical and mental health services, as well as education about parental rights and lactation.

The act would restrict when pregnant women can be placed in restrictive housing, ban the Bureau of Prisons and U.S. Marshal Service from placing pregnant women in solitary confinement during the third trimester, and require the BOP to evaluate pregnant women to determine if their pregnancy is high-risk.

Companion legislation in the House was introduced by Reps Karen Bass (D-CA) and Guy Reschenthaler (R-PA).

Sadly, the likelihood that this bill will be considered before the 117th Congress expires on January 2, 2023, is remote.

Gov’t Executive, Senate Bill Aims to Improve Care for Pregnant Women and Babies in Federal Prisons (October 18, 2022)

S. 5027, Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act

TRICK: IF AT FIRST YOU DON’T SUCCEED…

trick221028After Dan Kordash got caught at the airport by Customs and Border Protection officers after declaring he was carrying $12,000 in currency that turned out to be more like $33,000 (money which he forfeited), he was detained and questioned by CBP on at least two subsequent occasions. What’s worse, CBP officers told Dan that because of the money incident, he could count on always getting the third degree when he passed through the airport.

Dan filed Bivens claims against the CBP officers who detained him. The district court found that the officers had qualified immunity and dismissed the complaint. Not to be deterred, Dan then filed a Federal Tort Claims Act complaint for false imprisonment, battery, assault, intentional infliction of emotional distress, and negligence. The district court dismissed the new complaint as well for failure to state a claim, and Kordash appealed.

Last week, the 11th Circuit upheld the FTCA dismissal, holding that the doctrine of collateral estoppel meant that the Bivens suit determination that the officers acted lawfully in furtherance of federal policy should apply to the FTCA suit as well.

The 11th held that the issue in the FTCA case – whether the officers’ acts had a “nexus” with furthering federal policy and complied with federal law – was identical to the issue in the Bivens action. “In the Bivens action,” the Circuit said, “the district court determined for each incident when Kordash or Nilsen were stopped whether the officers acted within their discretionary authority and whether the detentions complied with federal law. Here, the same legal inquiries govern the application of the Supremacy Clause as a bar to liability for claims arising out of these incidents under the Federal Tort Claims Act.”

Because the issue met the test for issue preclusion, “Kordash is barred from relitigating these issues under the doctrine of collateral estoppel.”

Kordash v. United States, Case No. 21-12151, 2022 U.S.App. LEXIS 29420 (11th Cir., Oct. 21, 2022)

TREAT: MINNESOTA DRUG SALE STATUTES OVERBROAD

treatB221028The 8th Circuit ruled last week that because Minnesota’s definitions of “narcotic drug” and cocaine“ include drugs that the federal controlled-substance schedules do not, convictions under those statutes are not predicate “serious drug offense” under the Armed Career Criminal Act.

While the defendant was still convicted of a felon-in-possession count under 18 U.S.C. § 922(g)(1), his sentence exposure fell from 15 years to life all the way down to zero to 10 years.

United States v. Owen, Case No. 21-3870, 2022 U.S.App. LEXIS 28979 (8th Cir., Oct. 19, 2022)

– Thomas L. Root

Supreme Court Bloodies Bivens – Update for June 13, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BIVENS IS BARELY ALIVE AFTER SUPREME COURT MAULING

Rejecting 4th Amendment excessive force and 1st Amendment retaliation damages claims against a Border Patrol agent, the Supreme Court last week brought the venerable Bivens claim to the brink of extinction.

policeraid170824Federal law (42 USC § 1983) permits private citizens to sue state and local officials for violation of constitutional rights. But Section 1983 does not apply to federal officials and employees, and Congress has never passed a law similar to Section 1983 authorizing such actions against the feds.

However, back in 1971, the Supreme Court held that the right to file such an action should be presumed from the constitution, letting a 4th Amendment unlawful search and seizure claim go forward under “general principles of federal jurisdiction” in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.

Since Bivens, SCOTUS has been trying to limit the holding, in fact turning down every Bivens claim since 1980. Last week, the Court adopted a test that just about assures that Bivens will not be usable for any claim other than unlawful search and seizure and 8th Amendment claims.

Last week’s case arose when a Border Patrol agent allegedly entered the driveways at Smuggler’s Inn, a bed-and-breakfast sort of place in Blaine, Washington. The Inn’s backyard property line is the Canadian border, with nothing but some warning signs to stop people from coming and going.  According to the decision, the facility is both Spartan and pricey, appealing only to a clientele that wants to sneak north or sneak south.

Because of that, the Border Patrol has a special love for the place. The Egbert case arose when a Border Patrol agent followed the Inn’s van into the driveway, suspecting the passenger – a man who had just arrived from Turkey – of immigration shenanigans. When the Inn’s owner told the officer to leave, the border cop allegedly roughed him up. When the owner complained about the agent’s conduct, the Border Patrol allegedly began a campaign of harassment.

The Inn’s owner sued under Bivens for alleged 4th Amendment excessive force and 1st Amendment retaliation violations. But last week, the Supreme Court stopped him in his tracks.

smugglersinn220613

“[R]ather than dispense with Bivens altogether,” Justice Clarence Thomas wrote on behalf of the majority, “we have emphasized that recognizing a cause of action under Bivens is ‘a disfavored judicial activity.’” Yet, while it kept Bivens alive, the Court make it clear that Bivens remains on thin ice, warning “that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.”

Writing for a 5-4 majority, Thomas applied the two-step inquiry established in prior Bivens cases — whether the case involves an “extension” of Bivens into a “new context” that is “different in a meaningful way from previous Bivens cases decided by this Court,” and whether “special factors… counsel hesitation about granting the extension.”

For the “special-factors” analysis, the Court asks broadly whether judicial intrusion into a “given field” is inappropriate. Here, Thomas wrote, the question was whether it was appropriate to imply a Bivens action should apply to Border Patrol agents generally. Because border protection implicates national security, the Court ruled, it was more appropriate to leave the authorization of any remedy to Congress.

The opinion thus reduces the two-step analysis “into a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.”

paperwork171019Here, the Court said, it also matters that a citizen has an adequate alternative remedy in the Border Patrol’s internal grievance process. This is despite the fact that that process does not entitle a complainant to participate in the proceeding, is not subject to judicial review, and does not provide a money damages remedy to the complainant. But because Bivens “is concerned solely with deterring the unconstitutional acts of government officers” with the goal of preventing constitutional violations, the Court said, that’s enough.

Bivens cannot be used for 1st Amendment retaliation claims under any circumstances, the Court said. Allowing such “claims imposes costs and burdens on federal officers affecting how they perform their duties; Congress should decide whether the public interest is served by allowing damages and imposing those costs.”

The good news, if there is any, is that the Court acknowledged that a Bivens action still exists “for a federal prisoner’s inadequate-care claim under the 8th Amendment.” But it’s pretty clear for federal prisoners that, except for that “deliberate indifference” claim, Bivens is dead.

Egbert v. Boule, Case No. 21-147, 596 U.S. —, 2022 U.S. LEXIS 2829 (June 8, 2022)

SCOTUSBlog, Court constricts, even if it does not quite eliminate, damages actions under Bivens (June 8, 2022)

Interrogating Justice, SCOTUS Says Doing Nothing Deters Fourth Amendment Violations (June 9, 2022)

– Thomas L. Root

Supremes Burning Midnight Oil To Finish Term – Update for June 8, 2022

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SUPREME COURT FACES HISTORIC BACKLOG IN FINAL MONTH OF TERM

The Supreme Court – waiting until the bitter end to do the largest share of its work in more than 70 years – has scheduled a rare second opinion day for today.

scotus161130At 10 am, the Court will issue one or more opinions. It still has a lot to choose from.

The court is scheduled to hand down 30 more opinions, 48% of its expected total in argued cases, as its 2021-22 term ends in slightly more than three weeks. While most people are awaiting rulings that could hold that abortion is not a constitutional right but carrying a concealed gun is, there are five decisions of particular interest to federal inmates and defendants:

• Concepcion v. United States, Case No. 20-1650. Issue: Whether, when deciding if it should “impose a reduced sentence” under Section 404(b) of the First Step Act (Fair Sentencing Act retroactivity), a district court must – or even may – consider intervening legal and factual developments.

• Ruan v. United States, Case No. 20-1410. Issue: Whether a physician charged with prescribing controlled substances outside the usual course of professional practice may be convicted under 21 USC § 841(a)(1) without regard to whether, in good faith, he or she “reasonably believed” or “subjectively intended” that the prescriptions fall within that course of professional practice.

• United States v. Taylor, Case No. 20-1459: Whether 18 USC § 924(c)’s “crime of violence” definition excludes attempted Hobbs Act robbery (which could end up excluding all attempted crimes of violence from being predicates for § 924(c) offenses).

• Egbert v. Boule, Case No. 21-147: Whether one can sue a federal officer under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims.

• Kemp v. United States, Case No. 21-5726: Whether F.R.Civ.P. 60(b)(1) authorizes relief based on a district court’s error of law.

scotussplit190627The Supreme Court typically announces opinions on Monday, but as June progresses, more second opinion days like today are likely.

Supreme Court Faces Historic Case Backlog as Fractious Term Comes to an End (June 1)

The New York Times, We preview the five biggest rulings expected from the Supreme Court in the next few weeks (June 8, 2022)

– Thomas L. Root

Stress and Angst Not Enough Injury to Justify Civil Suit Against the BOP – Update for March 11, 2022

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NO HARM, NO FOUL

dongarra220311Jordan Dongarra, a convicted bank robber, was designated to serve his sentence at a newly-opened BOP facility, USP Canaan in Pennsylvania. When he arrived, Officer Smith issued him an ID card and clothing that mislabeled him as a sex offender. Jordy protested, and asked for new ID and threads. Officer Smith refused, saying he did not care and that he “hopes you know how to fight… and use a knife.”

Branded by his ID and T-shirt, Dongarra tried to explain the situation to other prisoners. Out of fear, he skipped all his meals and shed lots of weight. He refused to go out for recreation. “All this made him feeble and unfocused,” the Court said. He filed an administrative remedy, a so-called BP-9, asking the Warden to fix things by giving him normal prison clothes and an ID without the “sex offender” label.

The Warden never answered Jordy’s BP-9. Nevertheless, a few weeks after he filed it, the prison finally replaced his ID card and T-shirt with duds and accessories more appropriate for, say, your ordinary bank robber.

money160118Jordan sued Officer Smith in an action brought under Bivens, asking for money damages and an injunction to order the prison not to do it again. The district court threw out the case, and Jordan appealed.

Last week, the 3rd Circuit upheld the dismissal. “The 8th Amendment bans cruel and unusual punishments,” the Circuit said. “When we parse his complaint, we see that Dongarra is alleging two distinct 8th Amendment wrongs. First, he challenges the conditions of his confinement: living in prison while branded a sex offender, he says, made him anxious and stressed. Second, he challenges the prison’s failure to protect him. Smith, he argues, was deliberately indifferent to the risk that other prisoners would assault a supposed sex offender.”

The 3rd said that Jordy’s conditions-of-confinement claim failed “because dubbing him a sex offender did not deprive him of a basic human need.” His “failure-to-protect” claim, however, did allege an 8th Amendment violation.

The problem with the “failure-to-protect” claim, the 3rd said, was that it fell short on actual injury: you can’t collect damages for an assault that never happened.

“Rights do not always have remedies,” the 3rd Circuit said. “Often, someone can violate a right without paying full compensation. For instance, a valid claim can be blocked by sovereign or qualified immunity. So too here. Dongarra claimed administrative and injunctive relief, but he cannot get damages for any past harm.”

taketheshot211021This is a tough lesson for inmates to absorb. All the time, I hear from people who want to sue – and promise that any lawyer I find for them to take the case will become fabulously rich on the damages – because the Bureau of Prisons delayed medical treatment or held them in quarantine too long or denied their units recreation time or some other complaint. The complaints are usually correct, but the inmates cannot point to any actual harm they suffered other than stress, aggravation or ennui.

But popular media accounts notwithstanding, you really do need to be damaged before you can collect money for it. Juries are never terribly sympathetic to inmate plaintiffs to begin with. Telling Joe and Jane Juror in essence that the BOP was mean to you and you were upset by it rarely results in jury awards. In Jordan Dongarra’s case, it did not even result in the right to bring the claim.

Dongarra v. Smith, Case No. 20-2872, 2022 U.S. App. LEXIS 5347 (3d Cir. Mar. 1, 2022)

– Thomas L. Root

7th Circuit Says Exhaustion of Remedies No ‘Scavenger Hunt’ – Update for February 4, 2022

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SCAVENGER HUNT FOR BP-9 UNNECESSARY

Eric Gooch filed a Bivens action in December 2019 against two correctional officers, claiming an 8th Amendment violation after they allegedly convinced another inmate to attack him. Under the Prison Litigation Reform Act, an inmate has to exhaust all available administrative remedies before he or she can sue.

snitch160802Eric did not, claiming that when he asked his counselor for a remedy form, the counselor refused to give him one, saying “I’m not giving you a form to file on that and you better watch out snitching on staff.”

The District Court dismissed his lawsuit, holding that Eric could have mailed his request “directly to the Regional Office, as the regulations and program statement provide.” Thus, the administrative remedy process was still “available” to Eric, so he had to exhaust all of its steps before filing a complaint in federal court.

Last week, the 7th Circuit reversed the dismissal. The Circuit held that exhaustion of administrative remedies is not required when the prison officials responsible for providing grievance forms refuse to give a prisoner the forms necessary to file an administrative grievance. Evidence of the appropriate official’s refusal to give a prisoner an available form is sufficient to permit a finding that the administrative remedies are not available.

scavenger220204The 7th said that under the plain language of the BOP’s administrative-remedy process rules, in order to submit a grievance to the Warden or Regional Director, a prisoner must use the appropriate BP-9 form. The BOP argued that Eric had time remaining to file a timely BP-9, so he should have tried harder to procure the BP-9 form — for instance, by asking other staff — before “rushing to court.” The Circuit rejected this as “unworkable,” holding that the PLRA does require “prisoners to go on scavenger hunts just to take the first step toward filing a grievance.”

Gooch v. Young, Case No. 21-1702, 2022 U.S. App. LEXIS 2042 (7th Cir., January 24, 2022)

– Thomas L. Root

Supreme Court Adds Drug, Bivens Cases to Docket – Update for November 10, 2021

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SCOTUS TO HEAR BIVENS, ‘PILL MILL’ CASES

policeraid170824Fifty years ago, the Supreme Court ruled in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics that a person could sue federal agents and employees for violating his or her constitutional rights, even when there was not a specific law authorizing such a suit. (Bivens had its genesis in agents kicking down the door to Webster Bivens’ apartment, searching it and arresting him on drug charges, all without a warrant. The charges were later dismissed, and Webster was held to have the right to sue the agents for money damages arising from their violation of his 4th Amendment rights.

Since then, the Supreme Court recognized Bivens claims for damages for violations of the 4th, 5th and 8th Amendments, but in 2017 froze things by holding in Ziglar v. Abbasi that “expanding the Bivens remedy is now a disfavored activity.”

Last Friday, the justices agreed to decide in whether a Bivens remedy should be available to the owner of an inn on the US-Canada border who complained a Border Patrol agent violated both his 1st and 4th Amendment rights, while declining to reconsider Bivens itself.

feelgood211019The Court also granted certiorari in Ruan v. United States and Kahn v. United States, consolidating those cases to decide whether when the government prosecutes a doctor under 21 USC § 841 for issuing a prescription outside “the usual course of professional practice,” the government must also prove that the doctor knew or intended that the prescription be outside the scope of professional practice. The Court will also decide whether a “good faith” defense protects doctors who have an honest but mistaken belief that they have issued professional practice.”

Those cases relate to so-called pill mills, where doctors allegedly dispense opioids to patients much too freely to feed addictions rather than for a medical purpose. The Supreme Court will consider where the line is to be drawn between doctor discretion – especially in experimenting with pain management techniques – and garden-variety illegal drug dealing.

Egbert v. Boule, Case No 21- 147 (certiorari granted November 5, 2021)

Ruan v. United States, Case No 20-1410 (certiorari granted November 5, 2021)

Kahn v. United States, Case No 20-5261 (certiorari granted November 5, 2021)

– Thomas L. Root

Bear Hunting – Update for November 19, 2020

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SOME DAYS YOU GET THE BEAR…

billybear201119Billy Walters, convicted of insider trading charges in 2017, has filed a Bivens action against five law enforcement officials – including former SDNY US Attorney Preet Bharara – seeking a holding that his due process rights were violated when agents leaked confidential grand jury material to The Wall Street Journal and The New York Times, intended to “tickle the wire” by enticing investigation targets to implicate themselves on wiretaps. The leaks continued for more than a year, with 13 different stories about the investigation.

(A Bivens action, for those who are joining us late, is an action for money damages alleging that federal agents or employees violated one’s constitutional rights. It is so named for the case establishing the right – now rapidly being diminished – that case being Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), in which Mr. Bivens sued federal drug agents who kicked down his door, searched his apartment, and arrested him without a warrant for a drug crime that was never prosecuted).

Billy’s lawyers complained about the leaks at the time, but the US Attorney denounced the complaints as “false’’ and “baseless accusations that are undermined by the facts.’’ Only after the judge permitted Billy some discovery into there origin of the leaks did the US Attorney change his tune, admitting that a senior FBI agent had in fact leaked information and would be punished for it.

But evidence provided to the court showed that Bharara himself, along with a team of five other top prosecutors under him, were aware for two years that the FBI was leaking false information about Billy to the press. “While expressing outrage in selected emails shared with the court,” Forbes reported, “Bharara and his team appeared to do nothing to actually halt the activity.”  The FBI agent was severely lashed with a wet noodle, and retired with full benefits a few years later.

Billy’s judge expressed shock (although not enough shock to acquit Billy):

Mr. Walters is charged with, among other things, tipping material non-public information to another. And to help support that case, the special agent apparently tipped material non-public information improperly to another. That’s what we have here.

The 2nd Circuit later observed that the leaking of confidential grand jury testimony was “serious misconduct and, indeed, likely criminal’’ and “in some respects more egregious than anything Walters did.”

Billy’s complaint, filed by two law firms, seeks compensatory and punitive damages, and a declaration that Billy’s rights were trampled by the US Attorney and his minions.

Billy may have gotten the bear…

Real Clear Politics, Fighting Prosecutorial Leaks (November 11, 2020)

Forbes, Billy Walters Files Lawsuit Against FBI Leaker And US Attorney Team Who Covered It Up (October 30, 2020)

Complaint, Walters v. Bharara, Case 20cv8803 (SDNY Oct 22, 2020)

… AND SOME DAYS THE BEAR GETS YOU

Inmates cannot make a phone call without reading the writing on the wall (literally, it is painted on the wall above the phones in big letters, both English and Spanish) warning that phone calls are monitored and recorded.

Martin Shkreli, the original pharma bro (now a resident of FCI Allenwood Low), discovered that getting locked up wasn’t the end of his legal problems. The Federal Trade Commission sued a company he had run for anticompetitive conduct, and – with the cooperation of the BOP – got recordings of all of his inmate phone calls and emails.

martybear201119King Belshazzar was quite troubled by the handwriting on the wall, but Martin Shkreli is no King Belshazzar. so he talked freely on the inmate phones.  When the FTC told him it had gotten recordings of all of his inmate calls and emails – including communications with attorneys – from the BOP, Marty cried foul, arguing that he had an attorney-client privilege against disclosure, not to mention that the FTC’s possession of the records violated the Privacy Act.

The district court was unmoved. It ruled that under United States v. Mejia – 2nd Circuit precedent that holds an inmate has no expectation of privacy where all of the posted notices tell him otherwise – the court gave the FTC the go-ahead to use the material, except for a battle over four categories of documents. Last week, having rejected the Privacy Act argument, the court ruled that the FTC could use it all.

That should be a cautionary tale for inmates who don’t already believe those postings about calls and emails being monitored.

The bear got Marty…

Order, FTC v. Vyera Pharmaceuticals, LLC, Case 1:20cv706-DLC Dkt 308 (SDNY, November 10, 2020)

– Thomas L. Root

Bivens is Dead, Just Not Declared Dead – Update for July 21, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BIVENS, WE HARDLY KNEW YE


 critic200721Scott Callahan is serving a sentence for child pornography offenses. To pass the time, he took up painting. There is no doubt he built up a lot of self-confidence. Whether he developed skill to match is unclear. But what was clear is that he favored painting females in various states of undress or no dress at all. His work attracted followers, among them BOP officials who seized a number of his paintings, believing them to be more porn than art. Everyone’s a critic.

Scott sued his warden and other officials at his institution for violation of his 1st Amendment rights under Bivens v Six Unknown Federal Narcotics Agents. Bivens and two related cases were decided by the Supreme Court between 1971 and 1980, all of which recognized that people have an implied cause of action to sue federal officers for violations of their constitutional rights. Congress adopted a statute giving people the power to sue state and local officials for violation of constitutional rights, 42 USC § 1983. But Congress has adopted no similar statute giving people the power to sue federal officials for such violations. The Supreme Court reasoned that sometimes individual constitutional rights violations could be redressed only by damages, and the Court concluded in Bivens that it had the power to create such actions.

But that was then, and this is now. Since Bivens and its companion decisions were adopted, the Supreme Court has suffered “buyer’s remorse”, and has nearly gutted Bivens, as the 6th Circuit explained to Scott last week when it threw out his suit. “What started out as a presumption in favor of implied rights of action,” the Circuit explained, “has become a firm presumption against them. The Supreme Court has… repeatedly declined invitations, many just like Callahan’s, to create such actions… When asked’ who should decide’ whether a cause of action exists for violations of the Constitution,” the 6th held, the Supreme Court has repeatedly said “the answer most often will be Congress.”

childart200721The problem for Scott, the Circuit observed, “is not just that there has been a long drought since the Court last recognized a new Bivens action or even that the Court has cut back on the three constitutional claims once covered. What’s harder still is that the Court has never recognized a Bivens action for any First Amendment right, and it rejected a First Amendment retaliation claim decades ago for federal employees. There’s something to be said for leaving it at that and pointing out that the best idea for people in Callahan’s situation is to urge Congress to create a cause of action for constitutional claims against federal officials like the one used against state officials.”

It is fairly safe to say that, except in the narrowest of circumstances – such as when federal agents kick down your door by mistake – Bivens is dead.

Callahan v. BOP, 2020 U.S. App. LEXIS 22115 (6th Cir. July 16, 2020)

– Thomas L. Root