Petition for Writ of Certiorari — Gerald L. Ferreyra, et al., Petitioners v. Nathaniel Hicks

NO. ______

In the

Supreme Court of the United States

________________

OFFICER GERALD L. FERREYRA, in his individual

capacity; OFFICER BRIAN A. PHILLIPS, in his

individual capacity,

Petitioners,

v.

NATHANIEL HICKS,

________________

Respondent.

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the Fourth Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

Andrew C. White

Edward P. Parent

Jodie E. Buchman

Todd Hesel

SILVERMAN,

THOMPSON,

SLUTKIN & WHITE

400 East Pratt Street

Suite 900

Baltimore, MD 21202

Jeffrey S. Bucholtz

Counsel of Record

Rod J. Rosenstein

Kellam M. Conover

KING & SPALDING LLP

1700 Pennsylvania Avenue NW

Washington, DC 20006

(202) 737-0500

jbucholtz@kslaw.com

Counsel for Petitioners

September 22, 2023

QUESTIONS PRESENTED

Because “recognizing a Bivens cause of action is ‘a

disfavored judicial activity,’” it is settled that no

Bivens action exists where “there is any rational

reason . . . to think that Congress is better suited to

‘weigh the costs and benefits of allowing a damages

action to proceed.’” Egbert v. Boule, 142 S. Ct. 1793,

1803 (2022) (quoting Ziglar v. Abbasi, 582 U.S. 120,

135, 136 (2017)). To guide lower courts, this Court has

identified “several examples of new [Bivens] contexts”

where “a court is not undoubtedly better positioned

than Congress to create a damages action.” Id. Two

such examples are when the “legal mandate under

which the officer was operating” or “the constitutional

right at issue” differs from that in Bivens, which

involved federal narcotics officers conducting a

warrantless search and arrest inside a home without

probable cause. Abbasi, 582 U.S. at 140.

The questions presented are:

1. Whether a cause of action exists under Bivens

for Fourth Amendment claims against federal officers

operating under a different legal mandate than the

narcotics officers in Bivens.

2. Whether a cause of action exists under Bivens

for Fourth Amendment claims not involving a search

or arrest inside a home.

ii

PARTIES TO THE PROCEEDING

Petitioners Gerald L. Ferreyra and Brian A.

Phillips were the defendants in the district court and

appellants in the Fourth Circuit.

Respondent Nathaniel Hicks was the plaintiff in

the district court and the appellee in the Fourth

Circuit.

iii

RELATED PROCEEDINGS

This case arises from the following proceedings:

•

Ferreyra v. Hicks, No. 23A133 (U.S.)

(granting application for extension of time

to file a petition for certiorari, issued on

August 15, 2023);

•

Hicks v. Ferreyra, No. 22-1339 (4th Cir.

May 26, 2023) (denying rehearing en banc

and affirming judgment for plaintiff);

•

Hicks v. Ferreyra, No. 22-1339 (4th Cir.

Mar. 29, 2023) (opinion affirming judgment

below); and

•

Hicks v. Ferreyra, No. 8:16-cv-02521-PWG,

(D. Md. Jan. 28, 2022) (denying defendants’

post-trial motions for judgment as a matter

of law).

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly

related to this case under Supreme Court Rule

14.1(b)(iii).

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

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

RELATED PROCEEDINGS ..................................... iii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

STATEMENT OF THE CASE ................................... 1

A. Factual Background ..................................... 3

B. Procedural History ....................................... 4

REASONS FOR GRANTING THE PETITION......... 7

I.

The Fourth Circuit’s Decision Deepens Two

Intractable Circuit Splits .................................... 8

A. The Circuits Are Split 4-3 over Whether

Bivens Extends to Claims Against NonNarcotics Officers ......................................... 8

B. The Circuits Are Split 4-2 over Whether

Bivens Extends to Searches and Seizures

Outside of a Home ...................................... 14

II. The Decision Below Is Wrong ........................... 18

III. This Case Is an Ideal Vehicle for Deciding

These Exceptionally Important Questions ....... 23

CONCLUSION ......................................................... 26

v

APPENDIX

Appendix A

Opinion of the United States Court of

Appeals for the Fourth Circuit, Hicks v.

Ferreyra, No. 22-1339 (Mar. 29, 2023) ..... App-1

Appendix B

Opinion of the United States District

Court for the District of Maryland,

Hicks v. Ferreyra, No. 8:16-cv-02521PWG (Jan. 28, 2022) .............................. App-37

Appendix C

Order and Judgment of the United

States District Court for the District of

Maryland, Hicks v. Ferreyra, No. 8:16cv-02521-PWG (Jan. 28, 2022) ............... App-87

Appendix D

Order of the United States Court of

Appeals for the Fourth Circuit Denying

the Petition for Rehearing En Banc,

Hicks v. Ferreyra, No. 22-1339

(May 26, 2023) ........................................ App-89

Appendix E

Excerpts of Trial Transcripts, Hicks v.

Ferreyra, No. 8:16-cv-02521-PWG

July 6, 2021......................................... App-90

July 7, 2021......................................... App-94

vi

TABLE OF AUTHORITIES

Cases

Ahmed v. Weyker,

984 F.3d 564 (8th Cir. 2020)............................ 15, 20

Big Cats of Serenity Springs, Inc. v. Rhodes,

843 F.3d 853 (10th Cir. 2016).......................... 13, 14

Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics,

403 U.S. 388 (1971) ........................................ 1, 5, 21

Buchanan v. Barr,

71 F.4th 1003 (D.C. Cir. 2023) ........ 3, 11, 16, 19, 22

Canada v. United States,

950 F.3d 299 (5th Cir. 2020).................................. 10

Cantú v. Moody,

933 F.3d 414 (5th Cir. 2019)............................ 15, 20

Carlson v. Green,

446 U.S. 14 (1980) .................................................... 1

City of Indianapolis v. Edmond,

531 U.S. 32 (2000) .................................................. 20

Collins v. Virginia,

138 S. Ct. 1663 (2018)............................................ 20

Davis v. Passman,

442 U.S. 228 (1979) .................................................. 1

Egbert v. Boule,

142 S. Ct. 1793 (2022).......... 2, 10, 12, 19, 20, 21, 22

Hernández v. Mesa,

140 S. Ct. 735 (2020)........................................ 10, 22

vii

Hicks v. Ferreyra,

965 F.3d 302 (4th Cir. 2020)............................ 5, 6, 7

Hunter v. Bryant,

502 U.S. 224 (1991) ................................................ 24

Jacobs v. Alam,

915 F.3d 1028 (6th Cir. 2019).................... 12, 13, 22

Jacobs v. Alam,

No. 18-1124 (6th Cir. Mar. 12, 2019),

ECF 49-1 ................................................................ 14

Loumiet v. United States,

948 F.3d 376 (D.C. Cir. 2020) ................................ 11

Martin v. Malhoyt,

830 F.2d 237 (D.C. Cir. 1987) ................................ 11

Mejia v. Miller,

61 F.4th 663 (9th Cir.),

as amended (Mar. 2, 2023) .................. 10, 16, 19, 20

Oliva v. Nivar,

973 F.3d 438 (5th Cir. 2020)............ 9, 10, 15, 19, 20

Pettibone v. Russell,

59 F.4th 449 (9th Cir. 2023) .................................. 10

Snowden v. Henning,

72 F.4th 237 (7th Cir. 2023) .................................. 17

Vanderklok v. United States,

868 F.3d 189 (3d Cir. 2017) ..................................... 9

Wells v. Fuentes,

No. 1:22-cv-00140 (MSN/IDD),

2023 WL 3791390 (E.D. Va. June 2, 2023) ........... 24

Wilkie v. Robbins,

551 U.S. 537 (2007) ................................................ 24

viii

Xi v. Haugen,

68 F.4th 824 (3d Cir. 2023)................................ 9, 19

Ziglar v. Abbasi,

582 U.S. 120 (2017) ...... 2, 5, 7, 11, 13, 16, 18, 22, 24

Statutes & Regulations

54 U.S.C. § 100301 ..................................................... 3

54 U.S.C. § 102701 ..................................................... 3

Designation of Officers or Employees,

41 Fed. Reg. 44,876 (Oct. 13, 1976) ......................... 3

Other Authorities

Bhutta, Neil, et al.,

Changes in U.S. Family Finances

from 2016 to 2019: Evidence from

the Survey of Consumer Finances,

106 Fed. Rsrv. Bull. 1 (Sept. 2020) ....................... 25

Br. of Defendants-Appellants,

Jacobs v. Alam, No. 18-1124

(6th Cir. May 21, 2018), ECF 32 ........................... 13

Brooks, Connor

Dep’t of Justice, No. NCJ 304752,

Federal Law Enforcement Officers, 2020 –

Statistical Tables (Sept. 2022) .............................. 23

Nat’l Park Serv.,

U.S. Park Police, Homeland Security

Division, NPS.gov (Oct. 16, 2015),

https://www.nps.gov/subjects/uspp/hs.htm ... 3, 4, 22

PETITION FOR WRIT OF CERTIORARI

Petitioners Gerald L. Ferreyra and Brian A.

Phillips respectfully petition for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Fourth Circuit.

OPINIONS BELOW

The opinion of the court of appeals is reported at

64 F.4th 156 and reproduced at App.1–36. The

opinion of the district court is reported at 582 F. Supp.

3d 269 and reproduced at App.37–86.

JURISDICTION

The Fourth Circuit affirmed the judgment on

March 29, 2023, App.1, and denied rehearing en banc

on May 26, 2023, App.89. On August 15, 2023, the

Chief Justice extended the time to file a petition for

writ of certiorari to and including September 22, 2023.

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

STATEMENT OF THE CASE

This petition raises exceptionally important

questions about the scope of Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971). Bivens created a damages action

against federal narcotics officers for certain Fourth

Amendment violations occurring inside the plaintiff’s

home. Id. at 395–96. This Court initially expanded

Bivens to create remedies for sexual discrimination by

a member of Congress, Davis v. Passman, 442 U.S. 228

(1979), and abuse by federal prison officials, Carlson

v. Green, 446 U.S. 14 (1980). Over the last four

decades, however, the Court has all but shut the door

on new Bivens actions, “declin[ing] 11 times to imply

2

a similar cause of action” in other contexts. Egbert v.

Boule, 142 S. Ct. 1793, 1799 (2022). The Court’s

retreat from Bivens is unmistakable.

Approving any new Bivens action is now “a

disfavored judicial activity,” Egbert, 142 S. Ct. at 1803

(quotation marks omitted), and if “called to decide

Bivens today, [the Court] would decline to discover any

[Bivens] causes of action” at all, id. at 1809. Driving

home this message, the Court “has consistently

refused to extend Bivens to any new context or new

category of defendants.” Ziglar v. Abbasi, 582 U.S.

120, 135 (2017) (quotation marks omitted). Under

faithful application of this Court’s teachings, no

Bivens action should exist “in most every case.”

Egbert, 142 S. Ct. at 1803.

While some courts of appeals have heeded this

Court’s message, others—including the Fourth Circuit

below—have disregarded it. This case raises two new

contexts identified by this Court in Abbasi: It involves

U.S. Park Police officers enforcing a different “legal

mandate” and a traffic stop implicating a different

legal standard for the “constitutional right at issue.”

582 U.S. at 140. Yet the Fourth Circuit brushed aside

these distinctions, deeming this case “a replay” of

Bivens and blessing an eyebrow-raising $730,000

judgment against Petitioners.

App.7, App.14

(quotation marks omitted).

By casually expanding Bivens to two new

contexts, the Fourth Circuit deepened two entrenched

circuit splits. The circuits are divided 4-3 on whether

Bivens extends to Fourth Amendment claims against

non-narcotics officers. And they are divided 4-2 on

whether Bivens extends to Fourth Amendment claims

3

that arise outside of a home. These splits implicate

immensely important questions that affect tens of

thousands of federal law enforcement officers every

day.

Only this Court can provide uniformity in this

critically important area. Federal law enforcement

officers—especially those with a national security

mission, like U.S. Park Police officers—must be able

to act decisively, without the risk of life-changing

personal liability clouding their judgment. This Court

should grant certiorari and limit Bivens to its proper

scope.

A. Factual Background

Petitioners Gerald Ferreyra and Brian Phillips

are U.S. Park Police officers. App.2. Their agency is

the National Park Service, a component of the

Department of the Interior, see 54 U.S.C. § 100301.

U.S. Park Police officers “maintain law and order and

protect individuals and property” within all federal

parks. Id. § 102701(a)(1); see Designation of Officers

or Employees, 41 Fed. Reg. 44,876, 44,876 (Oct. 13,

1976) (designating U.S. Park Police officers for this

function). As part of this charge, U.S. Park Police

officers

perform

important

national-security

functions: They police “sensitive location[s]” that raise

national-security concerns, Buchanan v. Barr, 71

F.4th 1003, 1009 (D.C. Cir. 2023), including the areas

around the White House, the Statue of Liberty, and

other “National Icons” in Washington, D.C. and New

York, Nat’l Park Serv., U.S. Park Police, Homeland

Security Division, NPS.gov (Oct. 16, 2015),

https://www.nps.gov/subjects/uspp/hs.htm. They also

provide “Presidential security and dignitary escorts,”

4

id., which require them to conduct traffic stops and

take other investigative steps based on reasonable

suspicion.

Early one morning in July 2015, Officer Ferreyra

found Respondent Nathaniel Hicks asleep in a vehicle

parked on a federal expressway, I-295, near the

headquarters of the National Security Agency. App.3–

4, App.17 n.3. There was “a handgun in a ‘holstered

case’” on the front passenger seat. App.4. Seeing the

gun, Officer Ferreyra yelled and pointed his service

weapon at Respondent, who said that he was an onduty Secret Service agent waiting to join a motorcade

carrying a Cabinet Secretary. App.4. The Secret

Service had not previously notified the U.S. Park

Police of this motorcade. App.93. Officer Ferreyra

called for back-up, Officer Phillips arrived, and the

two officers continued to detain Respondent for about

an hour until their supervisor confirmed Respondent’s

on-duty status. App.4–5. During the stop, neither

Respondent nor his car was searched, and Respondent

was allowed to remain in his car with his phone and

car keys. See App.5. After he drove away, he was

pulled over and again detained in his car for “a few

minutes” by Officer Phillips. App.5–6. 1

B. Procedural History

1. In 2016, Respondent filed a Bivens claim

against Petitioners alleging that the one-hour welfare

1 The Fourth Circuit repeatedly asserted, incorrectly, that both

Petitioners are White. App.3–4, App.28. In fact, Officer Ferreyra

is Cuban and Puerto Rican. App.96–97.

5

check and brief traffic stop violated his Fourth

Amendment rights. App.6.

After the district court denied Petitioners’ motion

to dismiss, this Court issued its decision in Ziglar v.

Abbasi, 582 U.S. 120 (2017). Abbasi emphasized how

this Court “ha[d] consistently refused to extend Bivens

to any new context or new category of defendants,” 582

U.S. at 135 (quotation marks omitted), and instructed

lower courts that “a case presents a new Bivens

context” when the “legal mandate under which the

officer was operating” or “the constitutional right at

issue” differs from Bivens, id. at 139–40. Bivens

involved a suit against narcotics agents for violating

the plaintiff’s “rights of privacy” when they allegedly

“entered his apartment” without a warrant, searched

it from “stem to stern,” “manacled [him] in front of his

wife and children,” took him into custody and “strip

search[ed]” him, “and threatened to arrest the entire

family.” 403 U.S. at 389–90.

On appeal from the denial of summary judgment,

Petitioners argued to the Fourth Circuit that Bivens

should not be extended to the new context of this case.

See Hicks v. Ferreyra, 965 F.3d 302, 309 (4th Cir.

2020). But that court held that “this argument [wa]s

forfeited on appeal” for purposes of summary

judgment because it had not been first raised with the

district court. Id. at 309–12. In dicta, the Fourth

Circuit added that it viewed this case as “not an

extension of Bivens so much as a replay,” id. at 311—

even though Bivens involved officers with a different

legal mandate (enforcement of narcotics laws rather

than protection of federal property and its occupants)

and a different constitutional standard (probable

6

cause for a search and an arrest inside a home rather

than reasonable suspicion for a traffic stop and a brief

detention). The Fourth Circuit equated this case with

Bivens because, at a high level of abstraction, “Hicks

seeks to hold accountable line-level agents of a federal

criminal law enforcement agency, for violations of the

Fourth Amendment, committed in the course of a

routine law-enforcement action.” Id.

At trial, a jury awarded Respondent $730,000 in

compensatory and punitive damages on his Bivens

claim, including $305,000 against Officer Ferreyra

and $425,000 against Officer Phillips. App.7, App.87–

88. The district court denied Petitioners’ motions for

judgment as a matter of law, holding that the case

“do[es] not present either a new [Bivens] context or a

new category of defendants.” App.54; see App.61.

Despite recognizing Petitioners’ different legal

mandate, the court found no new category of

defendants because “the defendants in Bivens were

line-level federal officers, as are the Defendants in this

case.” App.54. And despite recognizing that traffic

stops “are factually different” and implicate a

“reasonable suspicion” standard, the court found no

new context because the case “involves a Fourth

Amendment warrantless seizure.” App.54–55.

2. The Fourth Circuit affirmed, holding that the

initial welfare check was lawful, but that

“significantly prolonging the initial stop” and

“initiating a second, unjustified stop” violated the

Fourth Amendment. App.2. The court of appeals

acknowledged this Court’s “severe narrowing of the

Bivens remedy” in Abbasi. App.12. But whereas

Abbasi had limited Bivens to the specific “search-and-

7

seizure context in which it arose,” 582 U.S. at 134, the

Fourth Circuit stretched Bivens to encompass the

entire “warrantless-search-and-seizure context of

routine criminal law enforcement,” App.12.

Consistent with its expansive view of Bivens, the

Fourth Circuit again deemed this case “a replay” of

Bivens. App.14 (quoting Hicks, 965 F.3d at 311). The

court dismissed the distinctions between Petitioners

and the narcotics officers in Bivens, reasoning that

both cases involved officers “engaged in routine law

enforcement measures.” App.16. The court also

rejected the distinction between the home search and

arrest requiring probable cause in Bivens and the

temporary detention requiring “a lesser showing” in

this case because—in its view—this distinction “does

not alter the constitutional right at issue or its

application to the routine enforcement of criminal

laws.” App.15–16. And the court found it of “no

relevance” that Petitioners were protecting an area

“‘near the headquarters of the National Security

Agency.’”

App.17 n.3.

Accordingly, the court

concluded, there was no “reason to conclude that

Congress might be better equipped to determine

whether to allow this civil action.”

App.16–17

(quotation marks omitted).

The Fourth Circuit

rehearing en banc. App.89.

subsequently

denied

REASONS FOR GRANTING THE PETITION

This Court’s recent Bivens jurisprudence has

unmistakably signaled that the door is all but closed

on recognizing new Bivens actions. While some courts

of appeals have heard that message loud and clear,

8

others have not. The Fourth Circuit is a prime

example. In the decision below, that court viewed this

Court’s retreat from Bivens actions as somehow “not

signal[ing] an intent to prohibit [Bivens’] application

in cases involving less egregious” alleged violations.

App.16 (emphases added).

The decision below deepened two circuit splits

regarding the availability of Bivens claims. There is a

sharp 4-3 split on whether Bivens extends to Fourth

Amendment claims against non-narcotics officers and

a 4-2 split on whether Bivens extends to Fourth

Amendment claims that arise outside the context of a

search or arrest inside a home. The two questions

presented affect tens of thousands of federal law

enforcement officers, who—despite this Court’s efforts

to clarify the strictly limited availability of Bivens

claims—still find themselves required to make splitsecond decisions every day under fear of being sued.

This case presents an ideal opportunity for the

Court to restore uniformity in both areas and to do so,

uniquely, in the context of a $730,000 personal

judgment that demonstrates the real-world costs of

allowing Bivens actions to proceed. The Court should

grant certiorari now before more courts follow the

Fourth Circuit’s example.

I.

The Fourth Circuit’s Decision Deepens Two

Intractable Circuit Splits

A. The Circuits Are Split 4-3 over Whether

Bivens Extends to Claims Against NonNarcotics Officers

The circuits are deeply divided on whether a

Bivens remedy exists against officers operating under

9

a different legal mandate than the narcotics officers in

Bivens. Four circuits have said “no.” Three circuits,

including now the Fourth Circuit, have said “yes.”

Certiorari is needed to resolve this intractable conflict.

1. Four circuits have squarely rejected Bivens

claims against various non-narcotics officers, holding

that those claims present a new context that warrants

relief crafted by Congress, not a court.

The Third Circuit has repeatedly rejected

requests to extend Bivens beyond narcotics officers.

That court denied Bivens relief against line-level

counterintelligence officials from the Federal Bureau

of Investigation because they were “a new category of

defendant.’’ Xi v. Haugen, 68 F.4th 824, 834 (3d Cir.

2023) (cleaned up). Hewing to this Court’s directive to

focus on the officers’ legal mandate, the Third Circuit

held that counterintelligence agents, unlike narcotics

officers, “protect the nation from threats of foreign

espionage,” id., and that “judicial intrusion” into the

field therefore “would be both harmful and

inappropriate,” id. at 836; see also Vanderklok v.

United States, 868 F.3d 189, 207 (3d Cir. 2017)

(denying Bivens relief against Transportation

Security Administration screeners in part because

their mandate is to “secur[e] our nation’s airports and

air traffic”).

The Fifth Circuit takes the same approach and

routinely denies Bivens claims against “different

officers from a different agency.” Oliva v. Nivar, 973

F.3d 438, 443 (5th Cir. 2020) (quotation marks

omitted). Oliva held that claims against Veterans

Affairs officers “manning a metal detector, not making

a warrantless search for narcotics,” “involve[d] [a]

10

different legal mandate[ ]” and hence a new Bivens

context. Id. That case followed this Court’s practice

of “consistently rebuff[ing] requests to add [new

Bivens] claims” and denied Bivens relief. Id. (quoting

Hernández v. Mesa, 140 S. Ct. 735, 743 (2020)). The

Fifth Circuit likewise has denied Bivens relief against

Internal Revenue Service agents because “clearly”

such claims “bear little resemblance to” the Bivens

claims this Court long ago endorsed and “implying a

cause of action would risk disrupting the IRS’s agency

decisions and collection efforts.” Canada v. United

States, 950 F.3d 299, 307, 311 (5th Cir. 2020)

(quotation marks omitted).

Since being reversed in Egbert, the Ninth Circuit

has heeded this Court’s teachings and has consistently

rejected attempts to expand Bivens to new types of

officers. That court has denied Bivens claims against

line-level officers from the Bureau of Land

Management (BLM), a component of the Department

of the Interior just like the U.S. Park Police, because

BLM officers do not have “the same mandate as

agencies enforcing federal anti-narcotics law” and

because Bivens actions in this area could cause

“‘systemwide consequences’ for BLM’s mandate to

maintain order on federal lands.” Mejia v. Miller, 61

F.4th 663, 668 (9th Cir.), as amended (Mar. 2, 2023)

(quoting Egbert, 142 S. Ct. at 1803–04). The Ninth

Circuit has rejected Bivens claims against Federal

Protective Service officers from the Department of

Homeland Security for similar reasons, including that

“[t]he legal mandate under which [they] act[ ] . . .

differ[s] from that of the agents in Bivens.” Pettibone

v. Russell, 59 F.4th 449, 455 (9th Cir. 2023).

11

The D.C. Circuit, as well, now denies Bivens

claims against non-narcotics officers. Despite once

extending Bivens to U.S. Park Police officers, see

Martin v. Malhoyt, 830 F.2d 237, 263 (D.C. Cir. 1987),

that court has since recognized that its earlier “cases

have been overtaken” by this Court’s more restrictive

precedents, Loumiet v. United States, 948 F.3d 376,

382 (D.C. Cir. 2020). The D.C. Circuit thus recently

denied Bivens relief against U.S. Park Police officers

who cleared protestors from a public park near the

White House. See Buchanan v. Barr, 71 F.4th 1003

(D.C. Cir. 2023). The court emphasized that the U.S.

Park Police officers’ actions “[were] notably different

from an unlawful search and arrest by federal

narcotics officers” and that Congress should design

any remedy against Park Police officers because their

actions can “implicate national security.” Id. at 1008–

09. Loumiet similarly denied Bivens relief against

officers from the Office of Comptroller of the Currency

in part because “the legal mandate under which [they]

were operating [wa]s different” from that in Bivens.

948 F.3d at 382.

Accordingly, four circuits follow this Court’s

directives and hold that a different “legal mandate

under which the officer was operating” presents a new

Bivens context for which Congress is better suited to

provide a remedy. Abbasi, 582 U.S. at 140. Had

Respondent been detained in any of these circuits, his

Bivens claim would have failed at the outset. Instead,

because Respondent brought this suit in the Fourth

Circuit, Petitioners have had the burdens of litigation

and the threat of personal liability hanging over their

heads for seven years—and now face a crippling

judgment.

12

2. Three circuits, in contrast, have approved

Bivens claims against non-narcotics officers.

Disregarding this Court’s directive to exercise

“caution” before recognizing a new Bivens action,

Egbert, 142 S. Ct. at 1803 (quotation marks omitted),

these circuits lump together all federal law

enforcement officers—no matter their agency or legal

mandate.

In this case, the Fourth Circuit reached the

opposite conclusion from the D.C. Circuit in Buchanan

by holding that there is no meaningful distinction

between U.S. Park Police officers and the narcotics

officers in Bivens.

Whereas the D.C. Circuit

recognized the U.S. Park Police’s different legal

mandate, the Fourth Circuit found a “replay” of Bivens

solely because both types of officers “engage[ ] in

routine law enforcement measures.”

App.14–16

(quotation marks omitted). And whereas the D.C.

Circuit recognized the U.S. Park Police’s role in

protecting national security, the Fourth Circuit

deemed this role of “no relevance”—even though this

case occurred “‘near the headquarters of the National

Security Agency.’” App.17 n.3. The Fourth Circuit’s

broad view unabashedly expands Bivens to encompass

all claims for “warrantless searches and seizures by

line officers performing routine criminal law

enforcement duties.” App.13.

The Sixth Circuit takes the same approach. That

court has recognized a Bivens claim against Deputy

U.S. Marshals on the basis that they were “individual

line officers . . . carrying out their routine police

duties.” Jacobs v. Alam, 915 F.3d 1028, 1038 (6th Cir.

2019). The Deputy U.S. Marshals there had argued

13

that the “different federal agency” created a new

Bivens context and that the “impact on [the Marshals

Service’s] system wide operations”—which includes

“apprehending fugitives, providing judicial security,

[and] enforcing sex offender registration laws”—

foreclosed Bivens relief. Br. of Defendants-Appellants

at 26, 30, Jacobs, No. 18-1124 (6th Cir. May 21, 2018),

ECF 32. The Sixth Circuit nevertheless held that the

“action presents no . . . novel circumstances.” Jacobs,

915 F.3d at 1038. The court was able to reach that

conclusion only by overlooking this Court’s

admonition to compare new putative Bivens cases to

“previous Bivens cases decided by this Court.” Abbasi,

582 U.S. at 139 (emphasis added). Instead, the Sixth

Circuit looked to its own case law, most of which

predates this Court’s recent clarifications of Bivens’

narrow scope, declaring that “garden-variety Bivens

claims” previously recognized by a circuit court

continue “to be viable post-[Abbasi].” Jacobs, 915 F.3d

at 1038–39; see id. at 1038 (“we have recognized . . .

every one of plaintiff’s Bivens claims”).

The Tenth Circuit also has recognized Bivens

claims against non-narcotics officers, including

Animal and Plant Health Inspection Services agents.

Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d

853 (10th Cir. 2016). Like the Fourth and Sixth

Circuits, the Tenth Circuit recognized a Bivens action

because the alleged warrantless entry was “a gardenvariety constitutional violation.” Id. at 864. The court

did not hesitate to extend Bivens to non-narcotics

officers because Bivens “ha[s] been routinely applied

to the conduct of [other] federal officials in a variety of

contexts.” Id.

14

Absent this Court’s intervention, this sharp

circuit split will persist and deepen. The Fourth and

Sixth Circuits do not intend to revisit their decisions,

as rehearing en banc was denied here and in Jacobs.

See App.89; Order, Jacobs, No. 18-1124 (6th Cir. Mar.

12, 2019), ECF 49-1. Nor is the Tenth Circuit likely to

revisit its decision in Big Cats. Though predating

Abbasi, that decision anticipated Abbasi’s framework

by holding that the case was “hardly a new context”

for Bivens actions. Big Cats, 843 F.3d at 864.

Accordingly, the circuit split is entrenched, and

certiorari is needed to resolve it.

B. The Circuits Are Split 4-2 over Whether

Bivens Extends to Searches and Seizures

Outside of a Home

The decision below also exacerbates a circuit split

as to whether Bivens extends to Fourth Amendment

claims that arise outside the context of a search or

arrest inside a home. Four circuits have held that

Bivens cannot be extended in this manner, while two

circuits—including the Fourth Circuit below—have

held it can.

Only this Court can resolve this

entrenched conflict.

1. Four circuits reject Fourth Amendment Bivens

claims that do not involve a search or arrest inside the

home, holding that those claims raise a new Bivens

context for which Congress should create any remedy.

The Fifth Circuit has repeatedly rejected Bivens

claims involving conduct outside the home. Oliva, for

example, refused to extend Bivens to a case that “arose

in a government hospital, not a private home,” because

that difference was “meaningful” under this Court’s

15

precedent. 973 F.3d at 442–43. Another case, which

involved false affidavits allegedly used to induce

unjustified charges, declined to create a Bivens

remedy for similar reasons. Cantú v. Moody, 933 F.3d

414, 423 (5th Cir. 2019). Cantú emphasized that

“[c]ourts do not define a Bivens cause of action at the

level of the Fourth Amendment or even at the level of

the unreasonable-searches-and-seizures clause.” Id.

at 422 (cleaned up). Because the plaintiff there “d[id]

not allege the officers entered his home without a

warrant,” the Fifth Circuit held that his claim

“meaningfully differe[d] from the Fourth Amendment

claim at issue in Bivens” and denied Bivens relief,

noting “legion ‘special factors’ counseling that result.”

Id. at 423.

The Eighth Circuit also has closed the door on

Fourth Amendment Bivens claims that arise outside

the home. As that court has explained, “[t]he focus in

Bivens was on an invasion into a home and the officers’

behavior once they got there.” Ahmed v. Weyker, 984

F.3d 564, 568 (8th Cir. 2020). Where an officer “d[oes]

not enter a home,” a case is “meaningfully different

from Bivens” because it does not present the same sort

of “physical invasions that were at the heart of

Bivens.” Id. The court went on to deny Bivens relief

for similar reasons, observing that “a trial would risk

. . . burdening and interfering with the executive

branch’s investigative . . . functions.” Id. at 570–71

(quotation marks omitted).

The Ninth Circuit likewise refuses to extend

Bivens to claims arising outside of a home. In denying

Bivens relief in Mejia, the court underscored that

“unlike Bivens, none of the events in question occurred

16

in or near Mejia’s home”; rather, they all “occurred on

public lands” in which Mejia did not have the same

“expectation of privacy.” 61 F.4th at 668. “[G]iven this

new context,” the court added, “special factors counsel

against implying a cause of action,” as Bivens claims

in this context could diminish BLM’s ability “to

maintain order on federal lands.” Id.

The D.C. Circuit takes this approach as well.

Buchanan refused to extend Bivens to a claim

involving the “clearing of protestors from a public

park” because that context “notably differ[s] from [the]

unlawful search and arrest” in Bivens. 71 F.4th at

1008. “[H]eeding [this] Court’s admonition” against

recognizing new Bivens actions, the D.C. Circuit held

that the location of the challenged conduct counseled

against Bivens relief. Id. at 1009 (explaining that

“officers in the area surrounding the White House and

the President must be able to act without hesitation”).

Accordingly, four circuits have followed this Court

and held that searches and seizures outside a home

implicate a new Bivens context for which any remedy

must come from Congress. Abbasi, 582 U.S. at 140.

Had Respondent been temporarily detained in any of

these circuits, no Bivens remedy would have been

available.

2. Two circuits, in contrast, have approved

Fourth Amendment Bivens claims that did not involve

a search or arrest inside the home. Like the circuits

that recognize Bivens actions against non-narcotics

officers, these circuits have flouted this Court’s

teachings by taking a blunt approach that groups

together all warrantless searches and seizures—no

17

matter where they occur and no matter what level of

suspicion is required.

The Fourth Circuit held below that traffic stops do

not constitute a new Bivens context. App.15–16 & n.2.

Despite acknowledging that the reasonable-suspicion

standard applicable to such “temporary detention[s]”

differs from the probable-cause standard at issue in

Bivens, the court held that this difference “does not

alter the constitutional right at issue or its application

to the routine enforcement of criminal laws.” App.15–

16. In the Fourth Circuit, every “warrantless seizure

of a person”—no matter the context—is “a replay” of

Bivens. App.14 (quotation marks omitted).

The Seventh Circuit likewise accepts Fourth

Amendment Bivens claims that arise outside a home.

See Snowden v. Henning, 72 F.4th 237 (7th Cir. 2023).

The district court in Snowden had denied a Bivens

claim alleging excessive force during an arrest in a

hotel lobby, reasoning that “the location of the arrest”

differed from Bivens and hence the claim did not

involve “the ‘rights of privacy’ implicated in” Bivens.

Id. at 240–41. The Seventh Circuit reversed, however,

holding that the case involved “a straightforward

application of Bivens itself.” Id. at 239. Citing the

Fourth Circuit’s decision here, the Seventh Circuit

viewed the distinction between “[h]otel or home” as

“trivial” because the claim “stem[med] from run-ofthe-mill allegations of excessive force during an

arrest.” Id. at 247 (quotation marks omitted).

Here, too, this Court’s intervention is urgently

needed. The 4-2 circuit split is deep, ripe, and will

persist, given the Fourth Circuit’s refusal to revisit the

issue en banc. Federal officers across the country will

18

be deterred from conducting traffic stops while they

face the risk of enormous personal liability if they

happen to be in the wrong jurisdiction. Indeed, had

Respondent been stopped on I-295 just a few miles

south in Washington, D.C., his Bivens claim would

have been barred. But because Respondent happened

to be stopped on the Maryland side of the state line,

Petitioners now face personal judgments of $730,000

for conducting a one-hour welfare check and a fewminute traffic stop. Federal law enforcement officers

should not face such widely varying exposure to

personal liability based on geographic fortuities.

II. The Decision Below Is Wrong

The Fourth Circuit’s decision rejected this Court’s

recent limitations on Bivens. This Court has not

recognized a new Bivens cause of action in more than

40 years. Yet the decision below took this Court’s

“severe narrowing” of Bivens, App.12, as an invitation

to extend Bivens to large numbers of federal officers

and to wide-ranging conduct bearing little

resemblance to the search and arrest inside a home in

Bivens. At each step, the Fourth Circuit rendered this

Court’s directives toothless.

Take the Court’s instructions on when a case

presents a new Bivens context. In Abbasi, this Court

established in no uncertain terms that “a case

presents a new Bivens context” when any one of

several different circumstances is present. 582 U.S. at

139. Among the “differences that are meaningful

enough to make a given context a new one” are when

the “legal mandate under which the officer was

operating” or “the constitutional right at issue” differs

from Bivens itself. Id. at 139–40. As this Court later

19

underscored, these are precisely the “situations in

which a court is not undoubtedly better positioned

than Congress to create a damages action.” Egbert,

142 S. Ct. at 1803.

The Fourth Circuit treated these express

mandates as mere suggestions. Petitioners’ status as

U.S. Park Police officers patrolling federal highways

for suspicious vehicles, not narcotics officers pursuing

drug dealers in their homes, should have made this

case “notably different” from Bivens, providing a clear

reason to deny Bivens relief. Buchanan, 71 F.4th at

1008–09; see also Xi, 68 F.4th at 834; Mejia, 61 F.4th

at 668; Oliva, 973 F.3d at 443. Congress is plainly

better suited to decide what if any damages remedy

should be created in this context, as actions against

U.S. Park Police officers can “implicate national

security,” Buchanan, 71 F.4th at 1009, and cause

“‘systemwide consequences’ for [the Park Police’s]

mandate to maintain order on federal lands,” Mejia,

61 F.4th at 668 (quoting Egbert, 142 S. Ct. at 1803–

04) (“That uncertainty alone is a special factor that

forecloses relief.”).

Yet the fact that Petitioners were “employed by

the [U.S. Park Police]” did not give the Fourth Circuit

pause. App.16. That court instead rewrote Abbasi to

except from the new-context test all claims against

officers “engaged in routine law enforcement

measures,” App.16, and all but limited Egbert to its

facts by ignoring them. After all, Egbert was more

similar to Bivens in involving allegations of excessive

force, and it involved precisely the sort of

“conventional” claim, Egbert, 142 S. Ct. at 1805

(quotation marks omitted), that would justify a Bivens

20

action under the Fourth Circuit’s overly broad

“routine law enforcement” reasoning, App.16;

cf. Egbert, 142 S. Ct. at 1811 (Sotomayor, J.,

dissenting in part) (arguing that the case involved

“circumstances [that] are materially indistinguishable

from those in Bivens”). Moreover, Egbert specifically

instructed that the mere fact that a case involves a

“‘conventional’ [Fourth Amendment] claim, as in

Bivens, does not bear on the relevant point,” which is

that “the Judiciary is comparatively ill suited to decide

whether a damages remedy . . . is appropriate.” 142

S. Ct. at 1805 (majority op.).

Similarly, Respondent’s temporary detention

while behind the wheel of an automobile on a federal

highway should have alerted the court that different

“expectation[s] of privacy” are at issue here and hence

there are several reasons to pause before “implying a

cause of action.” Mejia, 61 F.4th at 668; see also

Ahmed, 984 F.3d at 568; Oliva, 973 F.3d at 443–44;

Cantú, 933 F.3d at 423. As this Court has explained,

“the home is first among equals,” Collins v. Virginia,

138 S. Ct. 1663, 1670 (2018) (quotation marks

omitted), and gives rise to “significantly different”

expectations of privacy, such that “[t]he brief seizure

of an automobile can hardly be compared to the

intrusive search of the body or the home,” City of

Indianapolis v. Edmond, 531 U.S. 32, 54–55 (2000)

(Rehnquist, C.J., dissenting) (quotation marks

omitted).

Yet the Fourth Circuit deemed it irrelevant that

“a temporary detention can be justified by a lesser

showing than probable cause” and that this case

involves “less egregious intrusions of an individual’s

21

right to be free from unjustified, warrantless seizures”

than Bivens. App.15–16. That this case involves less

egregious alleged constitutional violations than in

Bivens should have given the Fourth Circuit pause.

Instead, where this Court viewed different

constitutional standards as closing the door to new

Bivens claims, the Fourth Circuit flung open the door

for all Fourth Amendment Bivens claims involving

what that court might view as “routine law

enforcement measures” by line-level federal agents,

regardless of the facts or applicable legal standard.

App.15–16.

The breadth of that ruling is sweeping. Virtually

everything federal officers normally do could be viewed

as “routine law enforcement measures.” By bringing

almost all law-enforcement activity within the scope

of Bivens, the Fourth Circuit nullified this Court’s

guidance that Bivens should not be extended to new

contexts. That result is especially perverse because

there was nothing “routine” about Bivens, where the

officers ransacked the plaintiff’s home, arrested and

strip-searched him, and threatened his family—all

without probable cause or a warrant. See 403 U.S. at

389. Today, not even those exceptional facts would

warrant an exception to the rule against “discover[ing]

. . . implied causes of action.” Egbert, 142 S. Ct. at

1809. So it was illogical for the Fourth Circuit to

create an exception for “less egregious” conduct.

The decision below further muted this Court’s

precedents in two fundamental ways. Abbasi made

clear that “[t]he proper test for determining whether a

case presents a new Bivens context” is whether it

meaningfully differs “from previous Bivens cases

22

decided by this Court.” 582 U.S. at 139 (emphasis

added). Like the Sixth Circuit in Jacobs, however, the

Fourth Circuit here found that the context was not

new because its own prior rulings had “appl[ied]

Bivens to Fourth Amendment claims arising from

police traffic stops like this one.” App.16 (quotation

marks omitted); see Jacobs, 915 F.3d at 1038 (“we

have recognized . . . every one of plaintiff’s Bivens

claims”). That flawed approach effectively legitimizes

earlier judicial expansions of Bivens and empowers

courts to continue recognizing Bivens actions in other

contexts, thereby frustrating this Court’s recent

decisions retrenching Bivens’ scope.

Equally alarmingly, the Fourth Circuit cast doubt

on this Court’s repeated insistence that “a Bivens

cause of action may not lie where . . . national security

is at issue.” Egbert, 142 S. Ct. at 1805; accord

Hernández, 140 S. Ct. at 746–47; Abbasi, 582 U.S. at

142. Congress is better suited to decide whether to

authorize remedies against U.S. Park Police officers

because they often perform national-security

functions such as protecting “sensitive location[s],”

Buchanan, 71 F.4th at 1009, and providing

“Presidential security and dignitary escorts,”

Homeland Security Division, supra; see also Egbert,

142 S. Ct. at 1806 (“[W]e ask here whether a court is

competent to authorize a damages action not just

against Agent Egbert but against Border Patrol

agents generally. The answer, plainly, is no.”). In this

case, Petitioners were patrolling a federally owned

expressway “‘near the headquarters of the National

Security Agency.’” App.17 n.3. The Fourth Circuit’s

dismissal of these national-security concerns as

having “no relevance,” App.17 n.3, reveals the

23

remarkable degree to which that court simply failed to

heed this Court’s precedent.

III. This Case Is an Ideal Vehicle for Deciding

These Exceptionally Important Questions

1. The Fourth Circuit’s expansion of Bivens—in

the teeth of this Court’s unequivocal directives—

invites intrusion into the critical work performed by

scores of federal law enforcement officers each day.

A ruling in this case would affect up to 92,860

federal law enforcement officers, across 94 agencies.

See Connor Brooks, Dep’t of Justice, No. NCJ 304752,

Federal Law Enforcement Officers, 2020 – Statistical

Tables, at 1, 17 (Sept. 2022), https://bjs.ojp.gov/sites/g/

files/xyckuh236/files/media/document/fleo20st.pdf.

The vast majority of those officers are not narcotics

officers.

Instead, they enforce a different legal

mandate for the U.S. Marshals Service (3,747) or for

the Departments of Homeland Security (66,215),

Veterans Affairs (3,923), Interior (3,019), Treasury

(2,502), or some other agency. See id. at 4. At stake

in this case, therefore, is whether tens of thousands of

federal law enforcement officers must continue to fear

being subjected to time-consuming litigation and lifechanging personal liability through a Bivens action. If

this Court thought it had solved that problem in

Abbasi and Egbert, the decision below—and the other

decisions on the Fourth Circuit’s side of the two splits

discussed in this petition—unfortunately proves

otherwise.

The specter of such personal liability is

enormously consequential. Tens of thousands of

federal officers—including Park Police officers, Secret

24

Service agents, and Deputy U.S. Marshals—perform

vital work protecting the nation’s security. Much of

that work involves searches or seizures outside of a

home. Officials in these situations must act decisively

and without hesitation; yet the decision below compels

them to “err always on the side of caution because they

fear being sued.” Hunter v. Bryant, 502 U.S. 224, 229

(1991) (per curiam) (quotation marks omitted). This

Court should not countenance continuing judicial

intrusion by the lower courts that forces officers “to

second-guess [such] difficult but necessary decisions.”

Abbasi, 582 U.S. at 142.

Unless this Court intervenes, the decision below

threatens an “onslaught of Bivens actions.” Wilkie v.

Robbins, 551 U.S. 537, 562 (2007). The Fourth Circuit

ignored this Court’s express directives, expanded

Bivens to two new contexts, and eviscerated this

Court’s recent Bivens precedents. That decision has

already emboldened other courts to expand Bivens to

still more—and more problematic—contexts. One

case relied on the decision below to hold that a Bivens

claim against a military official who searched a car

illegally parked near Arlington National Cemetery—

and found a Glock pistol, an AR-15 rifle, 150 rounds of

ammunition, bulletproof vests, and a smoke bomb—

“do[es] not represent an extension of the doctrine.”

Wells v. Fuentes, No. 1:22-cv-00140 (MSN/IDD), 2023

WL 3791390, at *1, *6–7 (E.D. Va. June 2, 2023). That

court concluded that the Fourth Circuit’s ruling in this

case “makes a Bivens remedy available for claims” in

all cases by plaintiffs alleging that “an officer

unreasonably seized their vehicle,” even though the

factual context and legal standard differ from Bivens.

Id. at *6.

25

2. This case is an ideal vehicle for resolving both

questions presented. Bivens actions rarely reach a

jury, much less result in a $730,000 judgment in the

absence of any bodily injury. 2 This case therefore

provides a rare opportunity for the Court to evaluate

the propriety of extending Bivens in light of its realworld consequences. The questions presented require

no factual development, were briefed and clearly

decided below, and were outcome-determinative in

this case: Petitioners would have been entitled to

judgment had the Fourth Circuit concluded that no

Bivens action is available against non-narcotics

officers or for conduct outside the home.

The tide of unwarranted Bivens actions brought

in disregard of this Court’s recent precedents grows

every day. If left in place, the decision below will open

the floodgates even further. Given the deep and

entrenched circuit splits on both questions presented,

no further percolation is needed. The Court should

grant certiorari now.

2 The judgment was approximately six times the median net

worth of an American family in 2019. Neil Bhutta et al., Changes

in U.S. Family Finances from 2016 to 2019: Evidence from the

Survey of Consumer Finances, 106 Fed. Rsrv. Bull. 1, 10 (Sept.

2020), https://www.federalreserve.gov/publications/files/scf20.

pdf (median family net worth was $121,700 in 2019).

26

CONCLUSION

The Court should grant the petition for writ of

certiorari.

Respectfully submitted,

Andrew C. White

Edward P. Parent

Jodie E. Buchman

Todd Hesel

SILVERMAN,

THOMPSON,

SLUTKIN & WHITE

400 East Pratt St.

Suite 900

Baltimore, MD 21202

Jeffrey S. Bucholtz

Counsel of Record

Rod J. Rosenstein

Kellam M. Conover

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

(202) 737-0500

jbucholtz@kslaw.com

Counsel for Petitioners

September 22, 2023