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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

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