Bivens Part 2

Question 1

Ziglar v. Abbasi - Facts

Answer 1

• 2017
• individuals who could be deported held in detention after 9/11 until cleared of assoc w/ terrorist activities
• sued execs and wardens

Question 2

Ziglar - Ruling

Answer 2

• SCOTUS didn’t allow rem wrt execs (responsible for general policy)
• remanded for reconsideration of claims against wardens

Question 3

Ziglar - Reasoning

Answer 3

• focused on q of whether the claims arose in a “new context” not covered by prior SCOTUS decisions that allowed Bivens claims
• claims re wardens were actually closely analogous to claims in Carlson, but q more contentious for execs (cabinet-level officials sued for adopting unconstitutional policy)

-court essentially argues the fact that the policy was implemented after the 9/11 attacks make it new
- ALSO finds new for wardens (“even a modest extension is still an extension” - due process clause of 5th Am instead of 8th, and PLRA made changes in prisoner abuse litigation without damages remedy)

• new context is important b/c determines whether or not the “special factors” analysis is required

Question 4

Ziglar - Special Factors

Answer 4

• SCOTUS held special factors DID apply for the execs
• thought damages action not appropriate vehicle for challenging general policy, especially in sensitive nat sec context
• also emphasized Congressional silence re remedy, despite awareness of the policy
• suggested habeas as alt + superior remedy

Question 5

Ziglar - New Context Rule

Answer 5

Proper test for new context: if case “different in a meaningful way” from prior Bivens cases, the context is new

Factors for New Context:
- implicates a different constitutional right
- if judicial precedents provide a less meaningful guide for official misconduct
- if there are potential special factors that were not considered in prior Bivens cases

Question 6

Ziglar - Dissent

Answer 6

• Breyer
• “fear that the Court’s holding would significantly shrink the existing Bivens contexts, diminishing the compensatory remedy constitutional tort law now offers to harmed individuals”
• context not new
• argued Bivens actions should continue to exist even in times of war or nat emergency

Question 7

Textbook Takeaways from Ziglar

Answer 7

• emphasis on new context introduces new element into traditional analysis of alt remedies + special factors counseling hesitation
• once new context found, chances of extending Bivens seem slim

Question 8

Westfall Act

Answer 8

• Federal Employees Liability Reform and Tort Compensation Act
• passed in 1988 in response to Westfall v. Erwin
• provides that FTCA = the exclusive remedy for injuries resulting from negligent or wrongful act or omission of gov employee acting in scope of employment
• provides mechanism for substituting fed gov as def when such suits brought against indiv officers
• BUT there’s an exception for suits against fed officials “brought for a violation of the Constitution of the U.S.”
• concept that if this is interpreted as precluding state law tort claims against fed officers, fed cts should be even more receptive to Bivens claims

Question 9

Hernandez v. Mesa - Facts

Answer 9

• 2020
• border patrol agent shot + killed 15-yr-old Hernandez, who was across the border in Mexico
• after gov failed to take action against agent + refused to extradite to Mexico, parents brought suit in fed district ct in TX, for violations of 4th + 5th Am rights

Question 10

Hernandez - Ruling + Reasoning

Answer 10

• SCOTUS denied Bivens remedy
• new context analysis - pls claims were similar to Bivens + Davis, but SCOTUS said new context b/c of cross-border nature of violation
  ->then examined special factors - foreign relations counseled hesitation, plus national security aspect of border protection

Question 11

Hernandez - Dicta on Bivens

Answer 11

• Alito op emphasized separation of powers issue + said “for almost 40 years, we have consistently rebuffed requests to add to the claims allowed under Bivens”
• didn’t suggest overturning, but expressed disagreement w/ its reasoning
  -> “demise of federal general common law”, pointed out lack of Congressional statute

Question 12

Hernandez - Thomas Concurrence

Answer 12

• wrote to suggest discarding Bivens altogether
• joined by Gorsuch

Question 13

Hernandez - Ginsburg

Answer 13

• dissent
• argued no new context - “only salient difference” from other unreasonable seizures = location + this shouldn’t matter
• also noted lack recourse to alternative remedies
• not escaping foreign relations issues even by refusing Bivens, also points out absurdity of the nat sec arg in this particular instance
• Congress has never dislodged Bivens

Question 14

Modern Status of Bivens

Answer 14

• book noted that court has overturned earlier decisions, so Bivens claims (especially for 4th Am claims against fed law enforcement officials + 8th Am claims against prison officials) still very common

Question 15

Obstacles Relevant to Bivens

Answer 15

• qualified immunity
• establishing proof of con right violation - may require proof of deliberate action or indifference, not just negligence

Question 16

Nationwide Injunctions

Answer 16

• q’s re propriety of nationwide injunctions that have effect of halting exec branch programs or activities throughout country - unless certified class action, usually impacting gov relationship w/ indivs not before the court

Question 17

Critiques of Nationwide Injunctions

Answer 17

• too much power to indiv district judges to impact nat policy,
• lead to forum-shopping by pls,
• unduly politicize judiciary
• prevent useful percolation of issues among circuits prior to SCOTUS review
• also arg that these are a modern phenomenon inconsistent w/ historical understanding of proper scope of equitable relief

Question 18

Defense of Nationwide Injunctions

Answer 18

• sometimes needed to provide pl w/ complete relief or because rights asserted aren’t divisible, also avoid undue confusion in implementation of fed programs

Question 19

Egbert v. Boule - Facts

Answer 19

• 2022
• border patrol agent assaulted US citizen during investigation on US side of border
• Boule filed grievance, + Egbert allegedly retaliated by, among
  other things, having the IRS conduct an audit of Boule’s taxes
• Ninth Circuit held that
  Boule could seek damages under Bivens for claims of both unreasonable use of force in
  violation of the Fourth Amendment and unlawful retaliation in violation of the First Amendment
• SCOTUS reversed

Question 20

Egbert Framing of Bivens

Answer 20

• Thomas opinion
• said 2-step Bivens analysis “often resolve to a single question: whether there is any reason to thin that Congress might be better equipped to create a damages remedy”
• “our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts”

Question 21

Egbert - Ruling + Reasoning - 4th Am Claim

Answer 21

• for 4th Am claim, court viewed border security as a “new context,”
• reasoned that “Congress is better positioned to create remedies
  in the border security context, and the Government already has provided alternative remedies that protect plaintiffs like Boule.”
• Even though case did not involve a cross-border shooting, Court saw Hernandez v. Mesa as controlling, stating that “a Bivens cause of
  action may not lie where, as here, national security is at issue.”
• also noted Border Patrol has an admin process for investigating grievances concerning conduct of its officers, + Boule had been able to use this process

Question 22

Egbert - Articulation of Alt Remedies

Answer 22

• “So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second guess that calibration by superimposing a Bivens remedy”

Question 23

Egbert - Ruling and Reasoning - 1st Am Claim

Answer 23

• declined to recognize Bivens claim for retaliation in violation of
  the First Amendment
• concern of harassing litigation
  against fed officers that would undermine ability to perform their duties
• Boule had argued claim was similar to discrim claim allowed in Davis v. Passman (it, too, required an eval of an official’s motives) BUT “Passman carries little weight because it predates our current approach to
  implied causes of action and diverges from the prevailing framework” in several respects.

Question 24

Egbert - Gorsuch

Answer 24

• concurrence
• Court should take next step + acknowledge explicitly legislative authorization required for con damages claims

Question 25

Egbert - Sotomayor

Answer 25

• agreed no 1st Am claim b/c would raise WIlkie line-drawing issues
• but argued no new context in 4th Am claim (argued basically identical to Bivens itself except border patrol instead of fed bureau of narcotics agent)
• no special factors - unlike Hernandez, conduct entirely on US side of border against US citizen
• argued no alt remedy (complainants in Boule’s position have no right to participate in the proceedings or to seek judicial review of any determination)

Practical consequences - “Absent intervention by Congress, [Border Patrol] agents are now absolutely immunized from liability in any Bivens action for damages, no
matter how egregious the misconduct or resultant injury.