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Tuesday, February 25, 2020

Bivens closer to death (and Thomas would kill it)

In one of the (unfortunately) least surprising decisions of the Term, SCOTUS held Tuesday in Hernandez v. Mesa that a Bivens claim was not available against a border-patrol agent who shot a Mexican national standing on the Mexico side of the border.

Justice Alito's opinion for five adopts the most restrictive view of Bivens, defining a new context to include virtually any identifiable factual distinction (here, the fact that the plaintiff was injured outside the U.S.), despite the right (Fourth and Fifth Amendment) and basic facts (excessive force by law enforcement standing on U.S. soil) being the same. Justice Thomas, joined by Justice Gorsuch, goes bigger--having cabined Bivens scope and limited its precedential value, the Court should "abandon the doctrine altogether." Justice Ginsburg wrote the dissent for Breyer, Sotomayor, and Kagan.

One notable point of departure between majority and dissent is how each reads Abbasi. The majority reads it as the latest in a 40-year line of cases rejecting Bivens claims, reaffirming the narrowness of past factual contexts and the newness (and thus inappropriateness of a Bivens suit) in other contexts.. The dissent emphasizes that Abbasi, while rejecting a Bivens action against high-level policymaking officials for national-security policy choices, "cautioned" against reading it to eliminate or limit core Bivens claims against rank-and-file law enforcement officers for unreasonable seizures.

If any case not on all factual fours with Bivens repesents a new context, the majority gets where Justice Thomas wants to go, without the political cost of overrulings. The "special factors" analysis will come around to congressional failure to authorize such a cause of action by pointing to § 1983 and the fact that it is limited to state (not federal) officials and plaintiffs within in the United States; that congressional failure will require judicial hesitation. The dissent's response--Congress enacted § 1983 in the middle of Reconstruction with a specific concern in mind and was not thinking about federal officials shooting people across borders--does not sway the rest of the Court. This factor always comes to conflicting views of what to do with congressional silence: The majority reads inaction as congressional intent not to reach the situation, while the dissent reads it as leaving the situation to Bivens (lest it create a situation in which it is "damages or nothing").

This decision is unsurprising, as conservatives have long hated Bivens. On the other hand, conservatives increasingly resort to the courts and constitutional litigation. What happens when conservative groups want to challenge ATF agents raiding their compounds?

Posted by Howard Wasserman on February 25, 2020 at 01:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Asher, I think that's not quite right. The language in Abbasi is so broad that most courts are rejecting Bivens claims in the non-exotic contexts that you describe. For one example outside the prison context (which is what I know best), in Tun-Cos v. Perrote the Fourth Circuit said no Bivens remedy for entirely banal Fourth Amendment violations by federal law enforcement officers because they were ICE agents, instead of some other kind of federal law enforcement officer which Bivens should protect. In prison cases, courts are rejecting plenty of deliberate indifference cases due to one distinction or another. But most run of the mill prison cases aren't deliberate indifference cases, they're excessive force or failure to protect or retaliation or interference with legal mail, and so on, and those are even harder to win after Abbasi when a cause of action was routinely recognized before it. (Bizarrely, the Supreme Court recognized a Bivens remedy for an 8th Amendment failure to protect claim in Farmer v. Brennan but forgot to mention it in Abbasi so courts are splitting on whether it counts as a "new context.") Those of us who represent, e.g., people abused in prison would be very happy if Bivens continued to reliably exist for our clients who were injured in the sort of routine unconstitutional conduct by individual low-level officers that makes up the bulk of Section 1983 cases but empirically that's just not what's happening.

Posted by: Samuel Weiss | Feb 25, 2020 9:42:02 PM

"If any case not on all factual fours with Bivens repesents a new context, the majority gets where Justice Thomas wants to go, without the political cost of overrulings."

I can never understand when people say this, because there are a whole lot of cases on all factual fours with Bivens (and the subsequent cases extending it). A cause of action against federal officers for non-exotic Fourth Amendment violations, deliberate-indifference Eighth Amendment claims, and even gender-discrimination claims is a really big deal! The stuff Bivens allows probably makes up the bulk of 1983 claims. The idea that Bivens might as well not exist if it can't be extended to exotic cross-border shootings and other colorably new contexts is just absurd on its face, like saying "there might as well not be a Title VII if the Court doesn't extend it to sexual-orientation discrimination; it comes to the same thing as repealing or invalidating the whole statute without the political costs."

Posted by: Asher Steinberg | Feb 25, 2020 6:26:38 PM

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