Bivens

Before an Assembly meeting begins, the Bivens statement is read 3 times to determine if any elected government officials are in attendance.

Bivens v. Six Unknown Named Agents (1971), a landmark Supreme Court case. The Bivens decision established that individuals can sue federal officials for damages if their constitutional rights are violated, creating a cause of action known as a Bivens claim or Bivens remedy. It applies when federal agents, acting under color of federal authority, violate rights like those protected under the Fourth Amendment (e.g., against unreasonable searches and seizures).

Key points:

• The case arose when Webster Bivens sued federal agents for an unlawful search of his home.
• The Court recognized an implied right to seek damages, despite no specific statute authorizing such suits.
• Bivens claims are limited in scope and apply only in specific contexts, with courts hesitant to expand them.

Bivens claims, stemming from Bivens v. Six Unknown Named Agents (1971), allow individuals to sue federal officials for constitutional violations in limited contexts. The U.S. Supreme Court has been cautious about expanding Bivens remedies, and they are generally recognized in three specific contexts, with strict criteria for any new applications. Below are the primary contexts where Bivens claims have been applied, based on established precedent:

1. Fourth Amendment Violations (Unreasonable Search and Seizure)

• Context: This is the original Bivens context, where federal agents violate an individual’s Fourth Amendment rights through unlawful searches, seizures, or arrests.
• Example Case: Bivens v. Six Unknown Named Agents (1971) involved federal narcotics agents entering and searching Webster Bivens’ home without a warrant, handcuffing him, and arresting him without probable cause.
• Application: Courts allow Bivens claims for clear Fourth Amendment violations by federal law enforcement, such as warrantless searches or excessive force, where no alternative remedy exists.
• Limitations: The claim must involve federal actors (not state or private entities), and courts may reject claims if alternative remedies (e.g., the Federal Tort Claims Act) are available.

2. Fifth Amendment Due Process Violations (Gender Discrimination)

• Context: Bivens was extended to cover Fifth Amendment due process violations in cases involving federal employment discrimination.
• Example Case: Davis v. Passman (1979) allowed a Bivens claim when a congressman’s administrative assistant was fired based on her gender, violating her Fifth Amendment equal protection rights.
• Application: This applies to federal officials’ actions that deprive individuals of due process or equal protection, particularly in employment or administrative contexts where no other remedy exists.
• Limitations: The Supreme Court has since limited this context, emphasizing that Bivens does not extend to cases where statutory remedies (e.g., Title VII for employment discrimination) are available.

3. Eighth Amendment Cruel and Unusual Punishment Violations

• Context: Bivens was extended to Eighth Amendment violations involving deliberate indifference to a prisoner’s serious medical needs by federal prison officials.
• Example Case: Carlson v. Green (1980) permitted a Bivens claim when a federal prisoner died due to inadequate medical care, alleging deliberate indifference by prison officials.
• Application: This applies to federal prisoners harmed by cruel and unusual punishment, such as neglect of serious medical needs or inhumane treatment in federal custody.
• Limitations: Claims are restricted to federal facilities and officials, and courts may deny Bivens relief if alternative remedies (e.g., administrative grievance processes) exist.

Constraints on Expanding Bivens to New Contexts

The Supreme Court has significantly restricted the expansion of Bivens claims beyond these three contexts, as seen in cases like Ziglar v. Abbasi (2017) and Egbert v. Boule (2022). To recognize a Bivens claim in a new context, courts apply a two-step analysis:

1. New Context Test: Is the case meaningfully different from the three established Bivens cases (Bivens, Davis, Carlson)? Differences can include the constitutional right at issue, the type of federal official, or the factual circumstances.
2. Special Factors Test: Are there “special factors” counseling hesitation, such as national security concerns, alternative remedies, or Congressional intent to limit liability?

Examples of rejected new contexts include:

• First Amendment claims (e.g., Reichle v. Howards, 2012, for retaliatory arrest).
• Fourth Amendment claims in cross-border incidents (e.g., Hernandez v. Mesa, 2020, for a Border Patrol shooting).
• Claims against private prison employees or federal agencies (e.g., Correctional Services Corp. v. Malesko, 2001).

Practical Considerations

• Qualified Immunity: Federal officials may be shielded by qualified immunity unless the constitutional violation was “clearly established” at the time.
• Alternative Remedies: Courts often deny Bivens claims if remedies like the Federal Tort Claims Act, habeas corpus, or administrative processes are available.
• Narrow Scope: Recent rulings emphasize that Bivens is a “disfavored” remedy, and Congress, not courts, should typically create new causes of action.