Petition for Writ of Certiorari — Vernon Norman Earle, Petitioner v. Shreves, C/O, et al.

No. 21_________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_________________________________________________

VERNON EARLE,

Petitioner,

v.

MICHAEL SHREVES, CORRECTIONAL COUNSELOR, et al.,

Respondents.

_________________________________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

_________________________________________________

PETITION FOR A WRIT OF CERTIORARI

_________________________________________________

ERICA J. HASHIMOTO

Counsel of Record

GEORGETOWN LAW CENTER

APPELLATE LITIGATION

PROGRAM

111 F STREET, NW

WASHINGTON, D.C. 20001

(202) 662-9555

eh502@georgetown.edu

Counsel for Petitioner

QUESTION PRESENTED

This Court held in Bivens v. Six Unknown Named Agents, 403 U.S.

388 (1971), that federal officers may be subject to individual-capacity

damages liability directly under the U.S. Constitution if they violate its

provisions, id. at 389. But before a court can recognize the availability of

a Bivens remedy in any given context, it must conclude that “no special

factors counsel[] hesitation in the absence of affirmative action by

Congress.” Id. at 396. Factors that counsel hesitation include the risk of

interfering in “high-level policies” likely to “attract the attention of

Congress,” Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (2017), but not the risk

of influencing individual, low-level officers’ day-to-day “efforts to perform

their official duties,” Carlson v. Green, 446 U.S. 14, 19 (1980).

This question presented is: Whether a rogue correctional officer’s

unlawful retaliation against an inmate for utilizing an administrative

grievance process implicates the sort of sensitive, policy-based judgments

that present special Bivens factors under this Court’s precedent.

i

PARTIES TO THE PROCEEDING

Petitioner Vernon Earle was the plaintiff in the U.S. District Court

for the Northern District of West Virginia and the plaintiff-appellant in

the U.S. Court of Appeals for the Fourth Circuit.

Respondents Michael Shreves, Correctional Counselor; Jose

Rivera, Unit Manager in Training; Rhonda Domas, Training Unit

Manager;

Derrick

Washington,

Lieutenant;

[Unknown]

Squires,

Lieutenant, Special Investigative Services; Brad Gorondy, Special

Investigative Agent; Michael Breckon, Associate Warden; Rachel

Thompson, Executive Assistant; Jennifer Saad, Warden; Kevin Kelly,

Complex Warden; Angela Gyorko, Case Manager; Christopher Pulice,

Case Management Coordinator; J.F. Caraway, U.S. Bureau of Prisons

Regional Director; and Ian Connors, National Inmate Appeals

Administrator were defendants in the U.S. District Court for the

Northern District of West Virginia and defendants-appellees in the U.S.

Court of Appeals for the Fourth Circuit.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................................................... i

PARTIES TO THE PROCEEDING ........................................................... ii

TABLE OF AUTHORITIES ...................................................................... iv

INTRODUCTION ....................................................................................... 1

OPINIONS BELOW ................................................................................... 4

JURISDICTION ......................................................................................... 5

RELEVANT CONSTITUTIONAL PROVISION ....................................... 5

STATEMENT OF THE CASE ................................................................... 5

REASONS FOR GRANTING THE WRIT ............................................... 10

I.

The Decision Below Reflects Lower Courts’ Confusion Over

the Circumstances Under Which Bivens May Be Extended

into New Contexts Following Ziglar. .................................... 12

II.

This Case Is an Ideal Vehicle for Clarifying When Bivens

May Be Extended Because It Presents a Context in Which

Bivens’ Deterrent Purpose Is Uniquely Essential. ............... 24

CONCLUSION ......................................................................................... 29

APPENDIX

Opinion of the U.S. Court of Appeals for the Fourth Circuit Affirming

the District Court’s Judgment (Mar. 10, 2021) ....................................... 1a

Order of the U.S. District Court for the Northern District of West

Virginia Granting Respondents’ Motion for Summary Judgment

(Apr. 23, 2019) ........................................................................................ 14a

Petitioner’s Sworn Pro Se Complaint (Jan. 17, 2017) .......................... 24a

Respondents’ Motion to Dismiss or, in the Alternative, Motion for

Summary Judgment (Aug. 30, 2018) ..................................................... 43a!

iii

TABLE OF AUTHORITIES

Cases

Ahmed v. Weyker, 984 F.3d 564 (8th Cir. 2020) ........................................ 2

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................. 29

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................. 2, 10

Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018) ...................................... 21, 22

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) .......... i, 1, 15

Booker v. S.C. Dep’t of Corrs., 855 F.3d 533 (4th Cir. 2017) .................. 28

Bush v. Lucas, 462 U.S. 367 (1983) ..................................................... 2, 16

Byrd v. Lamb, 990 F.3d 879 (5th Cir. 2021) (per curiam) ...................... 22

Callahan v. Fed. Bur. of Prisons, 965 F.3d 520 (6th Cir. 2020) ....... 21, 23

Cantú v. Moody, 933 F.3d 414 (5th Cir. 2019) .................................... 3, 23

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

Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (2001) ................ 19, 20

Crawford-El v. Britton, 523 U.S. 574 (1998) ........................................... 26

Davis v. Passman, 442 U.S. 228 (1979) ..................................................... 1

Fed. Deposit Ins. Co. v. Meyer, 510 U.S. 471 (1994) ............................... 25

Hartman v. Moore, 547 U.S. 250 (2006) .................................................. 26

Hernandez v. Mesa, 140 S. Ct. 735, 749 (2020) ....................................... 16

Koprowski v. Baker, 822 F.3d 248 (6th Cir. 2016) .................................. 20

Mack v. Warden Loretto FCI, 839 F.3d 286 (3d Cir. 2016) ..................... 21

McCarthy v. Madigan, 503 U.S. 140 (1992) ...................................... 18, 21

Milhouse v. Carlson, 652 F.2d 371 (3d Cir. 1981) ................................... 21

Minneci v. Pollard, 565 U.S. 118 (2012) ............................................ 15, 16

Mirmehdi v. United States, 689 F.3d 975 (9th Cir. 2012) ...................... 17

Schweiker v. Chilicky, 487 U.S. 412 (1988) ....................................... 14, 16

iv

Taylor v. Riojas, 141 S. Ct. 52 (2020) (per curiam)................................... 6

Tun-Cos v. Perrotte, 922 F.3d 514 (4th Cir. 2019) ............................ 16, 17

United States v. Standard Oil Co. of Cal., 332 U.S. 301 (1947)............. 15

United States v. Stanley, 483 U.S. 669 (1987) ........................................ 16

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)................. 14, 19

Watkins v. Three Administrative Remedy Coordinators of Bur. of

Prisons, 998 F.3d 682 (5th Cir. 2021) ................................................... 22

Woodford v. Ngo, 548 U.S. 81 (2006) ....................................................... 27

Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) .......................................... passim

Statutes

8 U.S.C. § 1331 ........................................................................................... 5

28 U.S.C. § 1254 ......................................................................................... 5

42 U.S.C. § 1997e ...................................................................... 4, 12, 25, 27

42 U.S.C. § 2000cc-2 ................................................................................. 11

Other Authorities

Jessica Marder-Spiro, Special Factors Counselling Action: Why Courts

Should Allow People Detained Pretrial to Bring Fifth Amendment

Bivens Claims, 120 Colum. L. Rev. 1295 (2020) .................................. 23

Stephen I. Vladeck, The Disingenuous Demise and Death of Bivens,

2020 Cato Sup. Ct. Rev. 263 ................................................................. 24

U.S. Bureau of Prisons, Administrative Remedy Program Statement,

OPI No. 1330.18 (2014) ........................................................................... 6

U.S. Bureau of Prisons, Inmate Security Designation and Custody

Classification, OPI No. 5100.8 (2006) .................................................... 7

Regulations

28 C.F.R. § 542.10 ..................................................................................... 20

Constitutional Provisions

U.S. Const. amend. I .................................................................................. 5

v

INTRODUCTION

This Court has long recognized that, “unless [constitutional] rights

are to become merely precatory,” one who experiences a constitutional

violation and has no other means of redress must be able to turn to the

courts for “protection.” Davis v. Passman, 442 U.S. 228, 242 (1979). And

where it is “damages or nothing” that can offer such protection, this

Court’s decision in Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971), empowers federal courts to grant monetary relief, even absent a

legislatively enacted damages remedy. Davis, 442 U.S. at 245 (quoting

Bivens, 403 U.S. at 410 (Harlan, J., concurring in the judgment)).

Despite suggesting that Bivens might not have followed the same

reasoning had it been decided today, this Court has never retreated from

Bivens’ core guarantee that a judicially created damages remedy remains

available unless there are “special factors counselling hesitation in the

absence of affirmative action by Congress.” Ziglar v. Abbasi, 137 S. Ct.

1843, 1856–57 (2017) (quoting Carlson v. Green, 446 U.S. 14, 18 (1980)).

Such factors may arise if a constitutional claim targets “large-scale policy

decisions” in sensitive areas like foreign relations or national security, id.

at 1862, or if Congress has chosen to fully occupy the remedial field by

1

constructing an “elaborate remedial system . . . step by step, with careful

attention to conflicting policy considerations,” Bush v. Lucas, 462 U.S.

367, 388 (1983). But as recently as 2017, this Court has reaffirmed that

Bivens remains essential to deter “individual instances” of unlawful

conduct that do not implicate broader policy judgments because, “due to

[its] very nature,” such discrete misconduct is “difficult to address except

by way of damages actions after the fact.” Ziglar, 137 S. Ct. at 1862.

Lower courts, though, have struggled to reconcile Bivens’ enduring

vitality with this Court’s view that extending Bivens into new contexts is

“disfavored.” Id. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675

(2009)). Accordingly, even while acknowledging that Bivens extensions

are available absent “special factors,” lower courts are now identifying

“special factors” that look nothing like the ones this Court has historically

recognized. Rather than asking whether a suit implicates high-level

policies or undermines a comprehensive, congressionally enacted

remedial scheme, lower courts today deny Bivens claims based on factors

necessarily present in any damages suit against a federal officer, see, e.g.,

Ahmed v. Weyker, 984 F.3d 564, 570 (8th Cir. 2020) (the need to inquire

into “what [the officer] knew, what she did not know, and her state of

2

mind at the time” of the violation); Cantú v. Moody, 933 F.3d 414, 423

(5th Cir. 2019) (the “length of time Congress has gone without statutorily

creating a Bivens-type remedy”), or even factors this Court has

specifically rejected as “special,” compare Cantú, 933 F.3d at 423 (treating

“the existence of a statutory scheme for torts committed by federal

officers” as a special factor), with Carlson, 446 U.S. at 19–23 (explaining

why it is “crystal clear” that the selfsame scheme does not displace Bivens

remedies).

The decision below exemplifies this confusion. In that decision, the

U.S. Court of Appeals for the Fourth Circuit held that no Bivens remedy

is available to redress rogue correctional officers’ unlawful retaliation

against an inmate for filing an administrative grievance. App. 3a. But

although the decision below purported to find support for this holding in

this Court’s general words of caution against Bivens extensions, App. 9a,

the particulars of the lower court’s special-factors analysis defied both

this Court’s precedent and common sense. The decision below held that

the risk of “judicial intrusion” into correctional officers’ everyday conduct

was a special factor, App. 11a, even though this Court has held that

qualified immunity sufficiently accounts for precisely this risk, Carlson,

3

446 U.S. at 19. And the decision below counterintuitively held that the

existence of the very grievance process that led to retaliation in the first

place was a special factor, App. 10a, even though Congress did not create

this process at all, let alone with the aim of displacing judicial remedies.

The decision below thus highlights the need for this Court to offer

guidance on the rapidly eroding distinction its precedent has drawn

between “special” factors that counsel against a Bivens extension and

ordinary factors that do not. And this case presents an urgent reason to

do so. In refusing to hold correctional officers accountable for their abuse

of the administrative grievance process that inmates must exhaust before

bringing any federal claims to court, see 42 U.S.C. § 1997e(a), the decision

below opens the door for rogue correctional officers to effectively insulate

themselves from all forms of legal accountability—be they judicially or

congressionally created—for any unlawful harm they inflict on the people

under their care. This Court should head off that troubling prospect by

granting certiorari and reversing the erroneous decision below.

OPINIONS BELOW

The decision of the U.S. Court of Appeals for the Fourth Circuit

(App. 1–13a) is reported at 990 F.3d 774. The opinion and order of the

4

U.S. District Court for the Northern District of West Virginia are

unreported and are available at App. 14–23a.

JURISDICTION

The Fourth Circuit, exercising jurisdiction under 8 U.S.C. § 1331,

entered judgment on March 10, 2021.

App. 1a.

This Court has

jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISION

The First Amendment to the U.S. Constitution provides:

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a

redress of grievances.

U.S. Const. amend. I.

STATEMENT OF THE CASE

1.

In November 2015, while Petitioner Vernon Earle was housed

at a Federal Correctional Institution in West Virginia, a group of

correctional officers that included Respondent Michael Shreves beat up

one of Mr. Earle’s fellow inmates.1 App. 36a.

In the aftermath of this

1 Because the lower courts resolved this case at the summary-judgment

stage, this factual recitation is drawn from Mr. Earle’s verified pleadings

5

incident, Mr. Earle’s housing unit was placed on lockdown, with hot

meals, visitation, and recreation suspended. Id.

Mr. Earle responded to the incident and resultant lockdown by

filing two administrative grievances with his Unit Managers. Id. The

Unit Managers then impermissibly forwarded the grievances to Mr.

Shreves, notwithstanding his personal involvement in the underlying

events. Id.; see U.S. Bureau of Prisons, Administrative Remedy Program

Statement, OPI No. 1330.18 at 10 (2014), https://www.bop.gov/policy/

progstat/1330_018.pdf (“Matters in which specific staff involvement is

alleged may not be investigated by either staff alleged to be involved or

by staff under their supervision.”).

Upon receiving the grievances, Mr. Shreves had Mr. Earle and

another inmate who had made similar complaints moved into solitary

confinement in the Special Housing Unit (SHU). App. 36a. Mr. Earle

repeatedly sought to learn why he had been placed in the SHU, and three

different prison officials all eventually told him that he had been placed

and presented in the light most favorable to his claim. See Taylor v.

Riojas, 141 S. Ct. 52, 53 n.1 (2020) (per curiam).

6

in the SHU because of the grievances he had filed and not because he was

under investigation for any kind of disciplinary infraction. App. 36–37a.

Mr. Earle was released from the SHU after thirty days. App. 3–4a.

But the prison warden then stripped him of his prison job and transferred

him and the other inmate who had complained about Mr. Shreves into

another housing unit so that—in the warden’s words—“there [wouldn’t]

be any further retaliatory actions.” App. 37a. Meanwhile, Mr. Earle’s

case manager changed his custody classification in an effort to have him

moved to a higher-security facility.

Id.; see U.S. Bureau of Prisons,

Inmate Security Designation and Custody Classification, OPI No. 5100.8,

ch. 6 at 1 (2006), https://www.bop.gov/policy/progstat/5100_008.pdf

(explaining custody classification). The case manager told Mr. Earle that

she had done this because Mr. Earle “love[d] to file” grievances. App. 37a.

When Mr. Earle notified his case manager’s supervisor about the

retaliatory change to his custody classification, the supervisor refused to

intervene and instead told Mr. Earle to “take it to the courts.” Id.

2.

Mr. Earle filed a pro se lawsuit against Mr. Shreves and

various other members of the prison staff (collectively, “the Officers”) in

7

the U.S. District Court for the Northern District of West Virginia. 2

App. 24–39a. As relevant, he claimed that the Officers had violated the

First Amendment by retaliating against him for filing administrative

grievances. App. 34–35a. And as a remedy, Mr. Earle sought money

damages from the Officers under Bivens. App. 41a.

The Officers moved to dismiss or, in the alternative, for summary

judgment. App. 43a. As a threshold matter, they argued that Mr. Earle

was not entitled to relief even if he established a First Amendment

violation because, in their view, this Court’s decision in Ziglar v. Abbasi,

137 S. Ct. 1843 (2017), barred the district court from recognizing a Bivens

remedy for a federal correctional officer’s unconstitutional retaliation

against an inmate. App. 51–56a. In addition, the Officers submitted

affidavits disclaiming any retaliatory intent and argued that Mr. Earle’s

sworn allegations were insufficient to establish that any constitutionally

impermissible retaliation had occurred. App. 56–63a, 69–83a.

The district court granted summary judgment for the Officers.

App. 14a. The court first held that Mr. Earle had failed to establish any

2 Before

filing suit, Mr. Earle exhausted his available administrative

remedies by following the U.S. Bureau of Prisons’ internal grievance

process. See App. 15a.

8

Officer’s “personal involvement” in the retaliation. App. 19a. Although

the court noted Mr. Earle’s sworn allegations that several Officers had

made statements openly suggesting retaliatory intent, the court reasoned

that Mr. Earle had “provide[d] nothing that could support that th[ese]

statement[s] actually occurred.” App. 20a. In the alternative, the district

court held that the retaliation claim failed as a matter of law because

“there is no First Amendment right to file grievances.”3 App. 21a.

3.

Mr. Earle appealed. After appointing undersigned counsel

and receiving briefing and argument, the U.S. Court of Appeals for the

Fourth Circuit affirmed dismissal of Mr. Earle’s retaliation claim,

although its reasoning differed from the district court’s. App. 13a & n.3.

According to the Fourth Circuit, Ziglar barred it from recognizing

a Bivens remedy in Mr. Earle’s case. App. 3a. Because all parties agreed

that Mr. Earle sought to extend Bivens into a context that was “different

in a meaningful way from [this Court’s] previous Bivens cases,” App. 7a

(quoting Ziglar, 137 S. Ct. at 1859), the Fourth Circuit identified the key

question as “whether there [were] ‘special factors counselling hesitation’

3 Because the district court believed that “there was no constitutional

right violated,” it also held that the Officers were entitled to qualified

immunity. App. 22a.

9

in implying a cause of action” for an inmate to seek damages for federal

correctional officers’ unconstitutional retaliation, App. 9a (quoting

Ziglar, 137 S. Ct. at 1857). The Fourth Circuit discerned two. First, it

noted that such an inmate would not be “completely without remedy”

absent a Bivens action because he could seek injunctive relief or file an

administrative grievance. App. 10a. Second, it worried that extending

Bivens into this context “could lead to an intolerable level of judicial

intrusion” into the prison staff’s disciplinary judgment calls. App. 11a.

Thus concluding that Bivens afforded Mr. Earle no cause of action, the

Fourth Circuit affirmed dismissal of his retaliation claim. App. 12–13a.

REASONS FOR GRANTING THE WRIT

The decision below reflects lower courts’ deep confusion over the

import of this Court’s opinion in Ziglar. While Ziglar observed that

“expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” it

took pains to emphasize that expansion is nonetheless permissible where

no special factors counsel hesitation. Ziglar, 137 S. Ct. at 1857 (quoting

Iqbal, 556 U.S. at 675). But the Fourth Circuit’s capacious view of what

constitutes a “special factor” effectively shuts the narrow pathway to new

Bivens claims that Ziglar carefully preserved.

10

The rationales the

decision below gave for declining to extend Bivens here look nothing like

the special factors this Court has identified in the past and directly

conflict with this Court’s precedential reasoning in Carlson v. Green, 446

U.S. 14 (1980). Unfortunately, though, the decision below is not alone in

relying on an overreading of Ziglar’s dicta instead of on this Court’s

actual holdings. This Court should intervene and clarify that Ziglar

meant neither more nor less than exactly what it said about the need to

distinguish between those “special” factors that counsel against a Bivens

extension and those ordinary factors that do not.

This case offers an ideal chance to do so. The special-factors issue

was fully briefed below and is dispositive of Mr. Earle’s appeal. What is

more, intervention here is uniquely important because the decision below

enables the subversion of both the judicial function and the will of

Congress. Both this Court and Congress have recognized legal claims

that inmates have an indisputable right to present in court. See, e.g.,

Carlson, 446 U.S. at 17–18 (recognizing an Eighth Amendment Bivens

claim); 42 U.S.C. § 2000cc-2(a) (creating a cause of action for certain

religious liberty claims). Congress, meanwhile, has directed that an

inmate must exhaust the administrative grievance process before

11

presenting such indisputably cognizable claims in a lawsuit. See 42

U.S.C. § 1997e(a). In holding that no Bivens remedy is available to deter

rogue officers from weaponizing that grievance process through

retaliation, the Fourth Circuit’s opinion opens the door for officers to

inflict grave, unlawful harm on an inmate who attempts to pursue

available judicially and legislatively created remedies through the

mechanisms Congress has deemed essential for doing so. This Court

should ensure that the threat of retaliation does not interfere with the

judiciary’s role in hearing and adjudicating viable claims, or with

Congress’s chosen means of facilitating judicial efficacy.

I.

The Decision Below Reflects Lower Courts’ Confusion Over

the Circumstances Under Which Bivens May Be Extended

into New Contexts Following Ziglar.

The decision below reflects widespread misunderstanding of Ziglar

that only this Court can address. In holding that Mr. Earle’s Bivens claim

was not viable “after Ziglar,” App. 3a, the decision below quoted Ziglar

at length for the general and uncontroversial propositions that Bivens

extensions are disfavored and that the associated special-factors analysis

is exacting, App. 5–7a. But when it came time to actually conduct that

analysis, Ziglar was nowhere to be found—because its discussion of

12

factors that “call into question the formulation and implementation of a

general [executive] policy,” Ziglar, 137 S. Ct. at 1860, has nothing to do

with Mr. Earle’s claim of rogue officer misconduct. Meanwhile, perhaps

owing to its mistaken belief that Ziglar controlled, the decision below did

not once cite the special-factors analysis in Carlson, this Court’s most onpoint precedent. Such misguided reliance on Ziglar’s broadly worded

statements of general principle rather than this Court’s holdings is

hardly unique to the decision below. This Court should intervene to

clarify that nothing in Ziglar’s dicta relieves lower courts from adhering

to precedents like Carlson (and Ziglar itself) that recognize Bivens’

critical role in deterring discrete instances of patently unlawful conduct.

1.

Ziglar formalized a two-step process for deciding whether a

Bivens action is available to pursue a given constitutional claim. First, a

court must ask whether the claim “presents a new Bivens context”

outside this Court’s existing precedent. Ziglar, 137 S. Ct. at 1859. If it

does, the court must then ask whether “special factors counsel[]

hesitation” against authorizing a Bivens action “in the absence of

affirmative action by Congress.” Id. at 1857 (quoting Carlson, 446 U.S.

at 18). While Congress will “most often” be the appropriate body to decide

13

“whether to provide for a damages remedy,” id., courts remain

empowered to do so in cases where “the Judiciary is well suited, absent

congressional action or instruction, to consider and weigh the costs and

benefits of allowing a damages action to proceed,” id. at 1858.

Ziglar then made clear what sort of special factors counsel against

a Bivens extension. In rejecting claims challenging executive detention

policies adopted in response to the September 11, 2001 attacks, Ziglar

focused on the risk that a Bivens suit could “call into question the

formulation and implementation” of those “general polic[ies]” and “border

upon or directly implicate the discussion and deliberations that led to

the[ir] formation.” Id. at 1860–61. The suit concerned not “standard ‘law

enforcement operations,’” but “major elements of the Government’s whole

response to the September 11 attacks,” including “sensitive issues of

national security” that are typically the prerogative of the executive. Id.

at 1861 (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 273

(1990)). While the “high-level policies” at issue had captured Congress’s

“frequent and intense” attention, Congress had shown no inclination to

create an avenue for redress. Id. at 1862 (second quoting Schweiker v.

Chilicky, 487 U.S. 412, 425 (1988)). And because the Ziglar plaintiffs

14

challenged “large-scale policy decisions concerning the conditions of

confinement imposed on hundreds of prisoners,” injunctive relief and

habeas corpus could adequately redress any constitutional harm. Id.

Ziglar, in short, did not involve “individual instances” of unlawful

conduct, which “due to their very nature are difficult to address except

by way of damages actions after the fact.” Id.

While emphasizing the importance of a rigorous special-factors

inquiry, then, Ziglar did nothing to change this Court’s understanding of

what constitutes a special factor. Since Bivens’ early days, this Court’s

special-factors inquiry in cases challenging the conduct of an individual

governmental actor has focused on whether a Bivens suit threatens to

undermine “federal . . . policy” in an area where “Congress [is] normally

quite solicitous,” Bivens, 403 U.S. at 396 (first quoting United States v.

Standard Oil Co. of Cal., 332 U.S. 301, 311 (1947)), and whether

Congress has displaced judicial remedies by creating a comprehensive

remedial scheme it views as “equally effective,” Carlson, 446 U.S. at 19.4

4 This Court has so far rejected plaintiffs’ efforts to bring Bivens claims

against defendants other than governmental actors because state-law

remedies are generally available in those cases. See, e.g., Minneci v.

Pollard, 565 U.S. 118, 126 (2012) (pointing to state tort law as a means

15

Both before and after Ziglar, that is where this Court’s focus has

remained. See, e.g., Hernandez v. Mesa, 140 S. Ct. 735, 749 (2020) (risk

of

undermining

foreign-policy

and

national-security

judgments);

Schweiker, 487 U.S. at 429 (risk of upsetting the “inevitable compromises

required in [Congress’s] design of a massive and complex welfare benefits

program”); United States v. Stanley, 483 U.S. 669, 678–86 (1987) (risk of

interfering in military affairs); Bush, 462 U.S. at 388 (risk of interfering

with “comprehensive” scheme of “civil service remedies” Congress

developed through considered “policy judgment”).

2.

Despite the obvious dissimilarities between Mr. Earle’s claim

of a discrete instance of unconstitutional retaliation by a set of rogue

officers and the Ziglar plaintiffs’ challenge to “large-scale [executive]

policy decisions” enacted in response to a major act of international

terrorism, Ziglar, 137 S. Ct. at 1862, the decision below nonetheless held

that, “after Ziglar,” Mr. Earle’s claim was not viable,5 App. 3a. But the

of redressing constitutional injury inflicted by “employees of a private

firm”). The situation “differs dramatically,” however, when a plaintiff

seeks damages “from personnel employed by the government,” because

they typically enjoy immunity from state-law actions. Id.

5 Along with Ziglar, the decision below cited the Fourth Circuit’s opinion

in Tun-Cos v. Perrotte, 922 F.3d 514 (4th Cir. 2019), as foreclosing Mr.

16

decision below identified no aspect of Ziglar’s special-factors analysis

that reinforced this conclusion.

Instead, it pointed only to Ziglar’s

general statements that extending Bivens is “a disfavored judicial

activity,” App. 5a (quoting Ziglar, 137 S. Ct. at 1857), “a significant step

under separation-of-powers principles,” App. 6a (quoting Ziglar, 137 S.

Ct. at 1856), and inappropriate where “there are sound reasons to think

Congress might doubt the efficacy or necessity of a damages remedy,”

App. 9a (quoting Ziglar, 137 S. Ct. at 1858). These statements are all

true enough.

But given Ziglar’s express recognition that Bivens

extensions are available where “the Judiciary is well suited . . . to

consider and weigh the costs and benefits” of allowing them, Ziglar, 137

S. Ct. at 1858, the broad background principles that the decision below

drew from Ziglar say nothing about whether a Bivens extension is

Earle’s claim. App. 3a. As in Ziglar, the Tun-Cos plaintiffs challenged a

broad executive policy in an area with “the natural tendency to affect”

matters squarely within the executive’s traditional realm of authority,

such as “diplomacy, foreign policy, and the security of the nation.” TunCos, 922 F.3d at 526 (quoting Mirmehdi v. United States, 689 F.3d 975,

982 (9th Cir. 2012)); see also id. at 527 (noting that the Tun-Cos plaintiffs’

initial complaint “specifically targeted the Trump Administration’s

immigration enforcement policy with the purpose of altering it” and that

they had “undoubtedly not abandoned” this purpose during litigation).

17

warranted in the specific context of Mr. Earle’s retaliation claim—let

alone establish that it is not.

Having highlighted dicta from Ziglar that gave no specific guidance

on the special-factors analysis here, the decision below then fully ignored

the precedent of this Court that offered just such guidance. In Carlson

v. Green, 446 U.S. 14 (1980), which the briefing below discussed at length,

this Court held that no special factors counseled hesitation in allowing a

Bivens claim to proceed against correctional officers who allegedly

deprived an inmate of necessary medical care, id. at 19. The officers, this

Court held, “d[id] not enjoy such independent status in our constitutional

scheme as to suggest that judicially created remedies against them might

be inappropriate.” Id. And “even if requiring them to defend” a Bivens

suit “might inhibit their efforts to perform their official duties,” qualified

immunity would “provide[] adequate protection.” Id.; see McCarthy v.

Madigan, 503 U.S. 140, 151 (1992), superseded in part on other grounds

by statute (reaffirming Carlson’s holding that “‘special factors’ do not free

prison officials from Bivens liability”).

By ignoring Carlson, the decision below avoided confronting the fact

that its own special-factors analysis was irreconcilable with Carlson’s.

18

The decision below emphasized that the threat of a retaliation claim

could interfere with a correctional officer’s disciplinary judgments, App.

10–12a, but Carlson expressly dismissed comparable concerns on the

grounds that qualified immunity will keep the risk of litigation from

inhibiting officers in their everyday duties, Carlson, 446 U.S. at 19.

Neither Ziglar nor any other precedent of this Court has departed from

Carlson to deny a Bivens remedy based on a bare risk that individual

liability for one-off misconduct might impact “standard ‘law enforcement

operations’” that do not implicate “major elements” of federal policy.

Ziglar, 137 S. Ct. at 1861 (quoting Verdugo-Urquidez, 494 U.S. at 273);

see also Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001) (“If

a federal prisoner . . . alleges a constitutional deprivation, he may bring

a Bivens claim against the offending individual officer, subject to the

defense of qualified immunity.”). And while the decision below believed

that injunctive relief and the administrative grievance process—the very

process that triggered the unlawful retaliation at issue in the first

place—did not leave Mr. Earle “completely without remedy,” App. 10a,

the relevant question under Carlson is whether Congress “meant to preempt a Bivens remedy” by creating a remedial scheme it viewed as

19

“equally effective,” Carlson, 446 U.S. at 19 (emphasis added); see Ziglar,

137 S. Ct. at 1862 (recognizing that “damages actions after the fact” can

be critical for deterring “individual instances” of officer misconduct).6

The decision below thus ultimately depends on a reading of Ziglar

that is inconsistent not only with Carlson but also with Ziglar’s own

express recognition that Bivens extensions remain permissible. After all,

it is impossible to imagine any constitutional claim that does not present

the possibility that injunctive relief, for example, could theoretically be

available in certain cases or raise the risk that damages liability could

affect an individual actor’s day-to-day decisions. But rather than looking

carefully to the particulars of this Court’s holdings to discern just what

sort of factors are so “special” as to counsel against a Bivens extension,

6 Mr. Earle’s case makes clear why the supposed alternative remedies the

lower court cited are more illusory than real. Where an officer’s

retaliatory conduct consists of a discrete, time-limited action—such as

putting an inmate in the SHU for one month—claims for injunctive relief

will almost certainly be moot by the time the case gets to court. And

while an inmate can use the grievance process to bring unlawful

retaliation to the attention of the Bureau of Prisons (assuming he can

tolerate the risk of further retaliation), see Malesko, 534 U.S. at 74, it

does not ensure any specific form of relief or any consequences that will

deter future misconduct, see 28 C.F.R. §§ 542.10–542.19; Koprowski v.

Baker, 822 F.3d 248, 256 (6th Cir. 2016) (noting that the administrative

grievance process “has been in effect for nearly four decades” and yet “did

not affect the Supreme Court’s conclusion in Carlson”).

20

the decision below treated Ziglar’s broad dicta as an invitation to conflate

“special factors with any factors counseling hesitation.” McCarthy, 503

U.S. at 151 (emphasis in original).

3.

Such overreading of Ziglar is not unique to the decision below.

Since Ziglar issued, Courts of Appeals have treated it as “renounc[ing]”

some aspect of Carlson and somehow changing the nature of the specialfactors analysis. Callahan v. Fed. Bur. of Prisons, 965 F.3d 520, 523 (6th

Cir. 2020). But, as below, courts can identify nothing beyond Ziglar’s

general discouragement of Bivens actions to justify this reading.

The Third Circuit offers a potent example. Since 1981, that court

had recognized that a federal inmate may pursue a First Amendment

retaliation claim against correctional officers under Bivens. See Mack v.

Warden Loretto FCI, 839 F.3d 286, 297 (3d Cir. 2016) (citing Milhouse v.

Carlson, 652 F.2d 371 (3d Cir. 1981)). But in 2018, the Third Circuit held

that Ziglar’s reminder that “expanding Bivens beyond those contexts

already recognized by the Supreme Court is disfavored” required it to

reassess circuit precedent. Bistrian v. Levi, 912 F.3d 79, 95 (3d Cir.

2018). Without identifying any new guidance Ziglar offered as to what

constitutes a special factor, the Third Circuit then wiped away thirty

21

years’ worth of its own holdings and announced that inmates’ retaliation

claims are not cognizable under Bivens after all. See id. at 95–96.

Even where courts do not go so far as overruling precedent, they

cite Ziglar to justify a breathtakingly broad conception of special factors

that has no basis in this Court’s Bivens precedents. For example, in Byrd

v. Lamb, 990 F.3d 879 (5th Cir. 2021) (per curiam), the Fifth Circuit

considered excessive-force and unlawful-detention claims filed against a

federal law enforcement officer who brandished a gun at a young man

investigating an car accident involving the officer’s son, told the young

man he would “blow his head off” and “put a bullet through his f––king

skull,” attempted to smash the young man’s car window, and ultimately

had the young man unlawfully handcuffed and detained for four hours,

id. at 880. The Fifth Circuit held that no Bivens remedy was available

after conducting a four-sentence special-factors analysis that pointed

vaguely to “separation of powers” and the fact that “Congress did not

make individual officers statutorily liable” for the claims at issue—

factors present in all cases considering Bivens extensions. Id. at 882; see

Watkins v. Three Administrative Remedy Coordinators of Bur. of Prisons,

998 F.3d 682, 685 (5th Cir. 2021) (citing the lack of a statutory damages

22

remedy and “respect for Congress and the longstanding principle of

separation-of-powers” as the only special factors justifying refusal to

extend Bivens to cover a federal inmate’s First Amendment retaliation

claim).

Indeed, some decisions—like the decision below—have identified

special factors even where this Court has specifically held that there are

none. The Fifth Circuit’s decision in Cantú v. Moody, 933 F.3d 414 (5th

Cir. 2019), for example, treated “the existence of a statutory scheme for

torts committed by federal officers” as a special factor counseling against

recognizing a Bivens remedy against law enforcement officers accused of

fabricating evidence, id. at 423, even though this Court has squarely held

that the exact statutory provision referenced in Cantú does not displace

Bivens, see Carlson, 446 U.S. at 19–20. And, in a sharp break with

Carlson, the Sixth Circuit has suggested that, after Ziglar, all “[p]risonbased claims” might involve special factors because they “present a risk

of interference with prison administration.” Callahan, 965 F.3d at 524;

see also Jessica Marder-Spiro, Special Factors Counselling Action: Why

Courts Should Allow People Detained Pretrial to Bring Fifth Amendment

Bivens Claims, 120 Colum. L. Rev. 1295, 1316 n.157 (2020) (citing cases

23

that have “refused to extend Bivens to cover claims that were nearly

identical to the claims brought in Carlson”).

These cases, like the decision below and countless others, reflect

suspicion that this Court “did not mean what it said” in Ziglar “when it

refused to cast doubt on the continued availability of redress for injuries

caused by garden-variety abuses of power by federal officials.” Stephen

I. Vladeck, The Disingenuous Demise and Death of Bivens, 2020 Cato

Sup. Ct. Rev. 263, 277. But lower courts are meant to follow this Court’s

holdings, not draw jurisprudential hunches from subtextual emanations.

This Court should intervene and clarify that the notes of caution Ziglar

sounded against extending Bivens did nothing to alter this Court’s

precedents explaining when extensions are and are not available—and

that those precedents continue to bind lower courts.

II.

This Case Is an Ideal Vehicle for Clarifying When Bivens

May Be Extended Because It Presents a Context in Which

Bivens’ Deterrent Purpose Is Uniquely Essential.

This case, which involves correctional officers’ unlawful retaliation

against an inmate for filing an administrative grievance, presents a

particularly strong opportunity for this Court to offer guidance on

applying Ziglar’s special-factors analysis. Because Congress has made

24

an inmate’s access to the federal court system contingent on his following

the administrative grievance process, see 42 U.S.C. § 1997e(a), ensuring

the integrity of that process (and, with it, the availability of a judicial

forum) is an area of critical importance to both judiciary and legislature

alike. And a ruling from this Court on whether a Bivens remedy is

available to deter rogue officers from intentionally corrupting that

process will be dispositive here.

1.

The precedent created below will have grave consequences for

people incarcerated in federal facilities and for the proper functioning of

the processes to which Congress has entrusted their rights. As this Court

has noted, “the purpose of Bivens is to deter the officer” from misconduct.

Fed. Deposit Ins. Co. v. Meyer, 510 U.S. 471, 485 (1994) (emphasis

omitted). And it is precisely cases like this one, which address “individual

instances of . . . law enforcement overreach,” where the deterrent effect

of a “damages action[] after the fact” is most potent and most necessary.

Ziglar, 137 S. Ct. at 1862.

By insulating correctional officers from

personal liability for even the most malicious acts of illegal retaliation—

including where the officers flout established law so egregiously that they

would not be entitled to qualified immunity—the decision below strips

25

away this vital deterrent and leaves rogue officers free to punish inmates

who report misconduct through the administrative grievance process.

But the effects of the decision below will reach far beyond the

individuals directly subjected to retaliation. This Court has observed

that “subjecting an individual to retaliatory actions . . . for speaking out”

violates the Constitution precisely because “it threatens to inhibit

exercise” of First Amendment rights. Hartman v. Moore, 547 U.S. 250,

256 (2006) (second quoting Crawford-El v. Britton, 523 U.S. 574, 588 n.10

(1998)). The retaliation that will go undeterred due to the decision below,

then, could chill others from filing grievances or otherwise reporting

officer misconduct in the first place. As a result, even where an inmate

has an unambiguously viable claim—a religious liberty claim pursuant

to the Religious Land Use and Institutionalized Persons Act, for example,

or an Eighth Amendment Carlson claim—officer retaliation could thwart

him from pursuing the relief that Congress or this Court deems essential.

Worse yet, beyond threatening the practical availability of legal

remedies Congress has guaranteed, the failure to deter retaliation

against

inmates

who

file

administrative

grievances

disserves

congressional will in yet another way. In 1996, Congress passed the

26

Prison Litigation Reform Act (PLRA). The PLRA did nothing to eliminate

the causes of action available to inmates—including the damages action

that had been available under Carlson for fifteen years by that point—

but it did create a requirement that any inmate bringing a federal claim

to court must first exhaust the grievance process. 42 U.S.C. § 1997e(a).

In doing so, Congress sought to ensure prisons “a fair opportunity to

correct their own errors,” to “reduce[] the quantity of prisoner suits” by

weeding out claims that can be adequately resolved at the administrative

level, and to prompt “the creation of an administrative record that is

helpful to the court” in those cases that do proceed to litigation. Woodford

v. Ngo, 548 U.S. 81, 94–95 (2006). But where unlawful retaliation chills

inmates from initiating the grievance process in the first place,

Congress’s considered judgment as to the manner in which their claims

should best be funneled into the courts is entirely undermined. Instead,

the meritorious claims that Congress envisaged passing through the

administrative process and arriving in court with the benefit of a

developed record will simply die on the vine.

Put simply, the First Amendment right to press constitutional

claims without fear of retaliation is a necessary precondition to the

27

vindication of every other right. Because the decision below poses grave

risks to that foundational First Amendment protection, it is particularly

important that this Court grant review to ensure that the special-factors

analysis is conducted under a proper understanding of the governing law.

2.

While the special-factors analysis here is critical for courts,

Congress, and incarcerated individuals throughout the nation, it is also

dispositive of Mr. Earle’s appeal. There is no dispute that Mr. Earle seeks

to extend Bivens into a new context, see App. 8a, so the presence or

absence of special factors is determinative of whether he may pursue a

First Amendment retaliation claim under Bivens. If he may, this case

must return to the district court for further proceedings.

Even though the district court granted summary judgment to the

Officers on grounds unrelated to Bivens, the Fourth Circuit had good

reason for conspicuously declining to endorse its reasoning. App. 13a n.3.

The district court’s belief that “there is no First Amendment right to file

grievances,” App. 21a, is simply wrong under not only Fourth Circuit

precedent, but also precedent from virtually every other circuit, see

Booker v. S.C. Dep’t of Corrs., 855 F.3d 533, 545 (4th Cir. 2017) (relying

on “decisions from nearly every court of appeals” to hold that the “right

28

to file a prison grievance free from retaliation was clearly established

under the First Amendment” as early as 2010). And the district court’s

decision to credit the Officers’ affidavits disclaiming retaliatory intent

over Mr. Earle’s sworn allegations that several of the Officers openly

informed him that he was being punished for filing grievances, see App.

19–21a, was impermissible at the summary-judgment stage, see

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility

determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those of a

judge . . . .”). Should this Court reverse the decision below, then, nothing

threatens to obviate the practical significance of this Court’s judgment.

CONCLUSION

This Court should grant certiorari.

Respectfully submitted,

ERICA J. HASHIMOTO

Counsel of Record

GEORGETOWN LAW CENTER

APPELLATE LITIGATION

PROGRAM

111 F STREET, NW

WASHINGTON, D.C. 20001

(202) 662-9555

eh502@georgetown.edu

Counsel for Petitioner

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