Reply Brief — Gerald L. Ferreyra, et al., Petitioners v. Nathaniel Hicks

NO. 23-324

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

________________

REPLY BRIEF FOR PETITIONERS

________________

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

December 14, 2023

TABLE OF CONTENTS

REPLY BRIEF FOR PETITIONERS ........................ 1

I.

The Courts of Appeals Are Deeply Divided on

Both Questions Presented ................................... 2

A. The 4-3 Split on Whether Bivens Extends

to Claims Against Non-Narcotics Officers

Warrants Review .......................................... 3

B. The 4-2 Split on Whether Bivens Extends

to Searches and Seizures Outside of a

Home Also Warrants Review ....................... 6

II. The Decision Below Is Wrong ............................. 8

III. This Case Is a Uniquely Good Vehicle for

Deciding These Important Questions ............... 10

CONCLUSION ......................................................... 13

ii

TABLE OF AUTHORITIES

Cases

Ahmed v. Weyker,

984 F.3d 564 (8th Cir. 2020).................................... 7

Annappareddy v. Pascale,

996 F.3d 120 (4th Cir. 2021).................................... 6

Attkisson v. Holder,

925 F.3d 606 (4th Cir.),

as amended (June 10, 2019) .................................... 6

Buchanan v. Barr,

71 F.4th 1003 (D.C. Cir. 2023) .................... 4, 5, 7, 9

Bulger v. Hurwitz,

62 F.4th 127 (4th Cir. 2023) .................................... 6

Cantú v. Moody,

933 F.3d 414 (5th Cir. 2019)................................ 3, 6

Doe v. Meron,

929 F.3d 153 (4th Cir. 2019).................................... 6

Dyer v. Smith,

56 F.4th 271 (4th Cir. 2022) .................................... 6

Egbert v. Boule,

596 U.S. 482 (2022) .......................................... 4, 8, 9

Elhady v. Unidentified CBP Agents,

18 F.4th 880 (6th Cir. 2021) .................................... 6

Ioane v. Hodges,

939 F.3d 945 (9th Cir.),

as amended (Sept. 19, 2019) .................................... 4

Mejia v. Miller,

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

as amended (Mar. 2, 2023) .................................. 3, 7

iii

Oliva v. Nivar,

973 F.3d 438 (5th Cir. 2020)................................ 3, 6

Tate v. Harmon,

54 F.4th 839 (4th Cir. 2022) .................................... 6

Tun-Cos v. Perrotte,

922 F.3d 514 (4th Cir. 2019).................................... 6

Xi v. Haugen,

68 F.4th 824 (3d Cir. 2023)...................................... 5

Ziglar v. Abbasi,

582 U.S. 120 (2017) .................................... 1, 2, 8, 10

Other Authorities

Br. for Appellees,

Logsdon v. U.S. Marshals Serv.,

No. 23-7008 (10th Cir. filed July 5, 2023) ............. 11

REPLY BRIEF FOR PETITIONERS

The Fourth Circuit’s decision exacerbates two

deep circuit splits regarding Bivens’ scope.

Respondent can tell the Court that these splits are

“invented,” “manufactured,” and “imagined,” BIO 15,

18, 22, only by misreading the cases.

As Petitioners explained, each circuit asks

whether an officer’s non-narcotics mandate or outsidethe-home conduct—among other factors—is a

“meaningful” distinction from Bivens.

Ziglar v.

Abbasi, 582 U.S. 120, 139 (2017). Some circuits hold

that these distinctions are no bar to Bivens relief

because they do not create a new Bivens context.

Others hold the opposite, explaining that these

distinctions are “meaningful enough to make a given

context a new one” and that Congress is better suited

to decide on any remedy. Id.

Respondent protests that the circuits have not

announced a “narcotics-officers-only” or “home-orbust” “on-off switch,” BIO 14, 15, 21, but the effect is

the same. In circuits where an officer’s non-narcotics

mandate or outside-the-home conduct is not

considered a new context, those distinctions will not

bar Bivens relief.

But in circuits where those

distinctions do create a new context, no such Bivens

claims will be recognized because, as Respondent

admits, “Abbasi effectively stopped Bivens from

spreading to ‘new contexts,’” BIO 23. The circuits are

therefore divided on whether these distinctions are a

bar to Bivens relief.

Respondent’s brief further confirms that review of

these important questions is warranted. Like the

2

divided circuits, the parties fundamentally disagree

over the interpretation of Abbasi. According to

Respondent, the Court blessed Bivens claims in all

“run-of-the-mill

search-and-seizure”

cases

not

implicating national security, regardless of whether a

case involves narcotics officers or in-the-home

conduct. BIO 23. Petitioners, in contrast, submit that

the Court meant what it said when it limited the

Bivens remedy to only the “search-and-seizure context

in which it arose.” Abbasi, 582 U.S. at 134 (emphasis

added). The question affects tens of thousands of

federal law-enforcement officers, who make splitsecond decisions every day in fear of protracted Bivens

lawsuits. This Court’s answer is urgently needed.

I.

The Courts of Appeals Are Deeply Divided

on Both Questions Presented

The decision below deepens a 4-3 circuit split on

whether Bivens extends to claims against nonnarcotics officers and a 4-2 circuit split on whether

Bivens extends to claims arising outside the context of

a search or arrest inside a home. Pet. 8–18.

Respondent primarily contends that no split

exists because all the circuits applied “a totality-ofthe-circumstances analysis” that denied (or

recognized) Bivens relief for multiple reasons. See

BIO 10, 12–22. But no circuit limited its holding to a

case-specific “totality of the circumstances.” Rather,

each circuit denying Bivens relief found a new context

for multiple independent reasons—including the

officer’s non-narcotics mandate or outside-the-home

conduct—and heeded this Court’s admonition against

recognizing Bivens actions in new contexts. There is

no reason to think any of these courts would extend

3

Bivens to these two new contexts. Indeed, Respondent

agrees that “Abbasi effectively stopped” the practice of

extending Bivens to new contexts. BIO 23.

The circuits, in short, are deeply and intractably

divided on whether an officer’s non-narcotics mandate

or outside-the-home conduct is a bar to Bivens relief.

Certiorari is needed.

A. The 4-3 Split on Whether Bivens Extends

to

Claims

Against

Non-Narcotics

Officers Warrants Review

1. Respondent does not dispute that the Third,

Fifth, Ninth, and D.C. Circuits would have rejected his

Bivens claim. That is because these circuits have held

that claims against non-narcotics officers present a

new Bivens context for which Congress should create

any remedy. Pet. 8–12.

Respondent’s contention (at 12, 18) that these

circuits have not adopted “bright-line rule[s]” is

incorrect. The Fifth Circuit has repeatedly held that

“the context is new”—and no Bivens relief is

warranted—where a claim involves “‘different officers

from a different agency.’” Oliva v. Nivar, 973 F.3d

438, 443 (5th Cir. 2020) (quoting Cantú v. Moody,

933 F.3d 414, 423 (5th Cir. 2019)); see id. at 444

(explaining that Congress’s failure to provide a

remedy “is itself a special factor” precluding Bivens

relief). So has the Ninth Circuit. See Mejia v. Miller,

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

(refusing to extend Bivens where officers lacked “the

same mandate as agencies enforcing federal antinarcotics law” because a Bivens action could cause

4

“systemwide consequences for [the agency’s] mandate”

(quotation marks omitted)).

Respondent ignores both courts’ reasoning, which

would bar Bivens claims against all non-narcotics

officers. And while he points (at 15) to an earlier

Ninth Circuit case allowing a Bivens claim against

IRS agents, that case did not address the defendants’

status as non-narcotics officers. See Ioane v. Hodges,

939 F.3d 945 (9th Cir.), as amended (Sept. 19, 2019).

Respondent’s attempts to recast the holdings of

the D.C. and Third Circuits fare no better. Unlike the

decision below, the D.C. Circuit denied Bivens relief

against Park Police officers for alleged Fourth

Amendment violations. Buchanan v. Barr, 71 F.4th

1003 (D.C. Cir. 2023). Respondent contends that the

officers’ “identity as Park Police officers—and not

narcotics officers—played no material role in the

court’s analysis.” BIO 15–16. Respondent omits,

however, that Buchanan “h[e]ld that [the] claims arise

in a new context” because the challenged action “[wa]s

notably different from an unlawful search and arrest

by federal narcotics officers.” 71 F.4th at 1008

(emphasis added). The court’s special-factors analysis

also focused on how the Park Police’s “actions

implicate national security.” Id. at 1009.

Respondent wrongly assumes (at 16) that such

national-security concerns are case-specific. This

Court has made clear that the key inquiry is “whether

a court is competent to authorize a damages action not

just against [individual officers] but against [officers

employed by the agency] generally.” Egbert v. Boule,

596 U.S. 482, 496 (2022). Accordingly, the Park

Police’s mandate to protect “sensitive location[s],”

5

71 F.4th at 1009, bars Bivens claims against all Park

Police officers.

The pre-Abbasi decision that

Respondent cites is not to the contrary, as it merely

“assum[ed] a Bivens claim was cognizable against

Park Police officers,” BIO 16.

Respondent similarly tries to diminish the conflict

between the decision below and the Third Circuit,

contending that the Third Circuit has “focused on the

identities of the defendants because of what they were

. . . , not what they were not (narcotics officers).”

BIO 13. But in Xi v. Haugen, that court described the

officers in Bivens as “federal narcotics agents” before

holding that the case involved “a new category of

defendant: a federal counterintelligence agent.”

68 F.4th 824, 834 (3d Cir. 2023) (cleaned up). The

relevant “distinction” was that the officers enforced a

different legal mandate. Id. The court viewed

national-security concerns as special factors, see id. at

836–37; but even absent those concerns, the Third

Circuit would not extend Bivens to the new context of

non-narcotics officers, given that court’s focus “on the

context in which [the claim] is brought,” id. at 836.

2. Respondent concedes that the Fourth, Sixth,

and Tenth Circuits allow Bivens claims against nonnarcotics officers where the “claims aris[e] out of

routine

(non-narcotics-related)

law-enforcement

encounters.” BIO 17. It is irrelevant that these

circuits “deny Bivens claims” in certain other contexts.

BIO 17–18 (emphasis omitted; citing cases). 1 These

1 The cases Respondent cites (at 17–18 & n.5) are far afield.

They either did not involve Fourth Amendment claims, see

6

circuits conflict with the four circuits addressed above

by treating an officer’s non-narcotics mandate as no

bar to a Bivens remedy.

B. The 4-2 Split on Whether Bivens Extends

to Searches and Seizures Outside of a

Home Also Warrants Review

1. The Fifth, Eighth, Ninth, and D.C. Circuits

have rejected Bivens claims involving outside-thehome conduct. Respondent again denies that this split

exists, but his effort to explain it away is

unpersuasive.

The Fifth Circuit has refused to extend Bivens

where a case “arose in a government hospital, not a

private home.”

Oliva, 973 F.3d at 442–43.

Respondent ignores Oliva’s relevant reasoning, which

makes outside-the-home Bivens claims categorically

unavailable because the existence of the Federal Tort

Claims Act is a “special factor” that precludes Bivens

relief. Id. at 444; see also Cantú, 933 F.3d at 423

(refusing to extend Bivens to case where officers did

not “enter[ ] [defendant’s] home” given “the existence

Bulger v. Hurwitz, 62 F.4th 127 (4th Cir. 2023) (Eighth

Amendment); Tate v. Harmon, 54 F.4th 839 (4th Cir. 2022)

(same); Elhady v. Unidentified CBP Agents, 18 F.4th 880 (6th

Cir. 2021) (Fifth Amendment); did not involve law-enforcement

officers, see Doe v. Meron, 929 F.3d 153, 169 (4th Cir. 2019)

(military officers “operating under naval regulations”); Tun-Cos

v. Perrotte, 922 F.3d 514, 524 (4th Cir. 2019) (“ICE agents were

not enforcing the criminal law”); or did not consider the

defendant’s status, see Dyer v. Smith, 56 F.4th 271 (4th Cir.

2022); Annappareddy v. Pascale, 996 F.3d 120 (4th Cir. 2021);

Attkisson v. Holder, 925 F.3d 606 (4th Cir.), as amended (June

10, 2019).

7

of a statutory scheme for torts committed by federal

officers” even where there was no statutory “remedy

for this [particular] context”).

The Eighth and Ninth Circuits, too, have refused

to extend Bivens outside the home. See Pet. 15–16

(discussing Ahmed v. Weyker, 984 F.3d 564 (8th Cir.

2020), and Mejia, 61 F.4th 633). Although these cases

“mentioned a series of differences,” BIO 20, that does

not change that both courts deemed outside-the-home

conduct “meaningfully different from Bivens” because

it does not present the same sort of “invasions that

were at the heart of Bivens,” Ahmed, 984 F.3d at 568;

see Mejia, 61 F.4th at 668 (“unlike Bivens, none of the

events in question occurred in or near Mejia’s home”).

Respondent’s speculation (at 20) that the Ninth

Circuit might allow Bivens actions for traffic stops

ignores that Mejia involved a “stop . . . for a traffic

violation.” 61 F.4th at 665.

Respondent insists that “Buchanan turned out

the way it did . . . because [the events] occurred in

front of the President’s home.” BIO 21. But the D.C.

Circuit did not mention the White House in holding

that the claims “arise in a new context.” Buchanan,

71 F.4th at 1008 (explaining that “the clearing of

protestors from a public park by federal law

enforcement officers is notably different from [the]

unlawful search and arrest” in Bivens (emphasis

added)). And because the D.C. Circuit “heed[s] [this]

Court’s admonition” against approving new Bivens

contexts, id. at 1009, there is no reason to think it

would ever endorse a Bivens claim involving outsidethe-home conduct.

8

2. Respondent acknowledges (at 21–22) that the

Fourth and Seventh Circuits allow Bivens claims for

outside-the-home conduct. Whether these circuits

have “green-light[ed] all future Bivens case[s] arising

outside the home,” BIO 21, is a strawman; of course

they haven’t. The point is that these circuits treat

outside-the-home conduct as no bar to Bivens relief, in

conflict with the above four circuits.

II. The Decision Below Is Wrong

Respondent’s brief underscores why this Court’s

review is needed. Like the Fourth Circuit below,

Respondent believes that Bivens broadly extends to all

“run-of-the-mill search-and-seizure” cases that do not

implicate national security. BIO 23; see App. 12.

Petitioners, backed by other circuits, believe that this

Court meant what it said when it limited Bivens to the

specific “search-and-seizure context in which it arose.”

Abbasi, 582 U.S. at 134 (emphasis added). This sharp

dispute reflects the circuits’ disagreement about how

to interpret Abbasi. Having created the Bivens

remedy, only this Court can resolve that basic

disagreement about its scope.

Respondent’s brief, in fact, confirms that the

decision below is wrong. The mere fact that an

individual 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.” Egbert, 596 U.S. at 495.

Respondent offers no reason to believe the Judiciary is

well-suited to fashion a damages remedy for traffic

stops. There are few similarities between Bivens and

this case, and the fact that Petitioners were Park

9

Police officers patrolling federal highways for

suspicious vehicles, not narcotics officers pursuing

suspected drug dealers in their homes, should have

provided clear reasons to recognize that Congress is

better suited to craft any relief. See Pet. 19–20;

BIO 22–27 (not addressing this point).

Indeed, Respondent concedes that, given the Park

Police’s national-security functions, Bivens claims

against “other Park Police officers” could “implicate

national security—and would likely therefore yield a

different answer under Bivens” than the decision

below. BIO 26 n.9. That concession is fatal: The

relevant question is “whether a court is competent to

authorize a damages action not just against

[Petitioners specifically] but against [Park Police

officers] generally.” Egbert, 596 U.S. at 496. Under

Respondent’s own concession, “[t]he answer, plainly,

is no,” id., and the decision below is incorrect.

Respondent argues (at 26 n.8) that the facts of this

case present “no such national security concerns.” But

that is irrelevant under Egbert. See 596 U.S. at 496

(explaining that the question is not “whether Bivens

relief is appropriate in light of the balance of

circumstances in the particular case,” but whether

“more broadly there is any reason to think that

judicial intrusion into a given field might be

inappropriate” (cleaned up)). Respondent is also

wrong: Petitioners were patrolling an area “‘near the

headquarters of the National Security Agency.’’’

App. 17 n.3. Congress is better suited to determine

whether such sensitive duties should give rise to

private lawsuits. See Egbert, 596 U.S. at 496–97;

Buchanan, 71 F.4th at 1009.

10

Respondent also admits that the Fourth Circuit

“looked only to circuit caselaw in . . . noting that the

Fourth Circuit and other courts of appeals have

applied Bivens to similar traffic stops.” BIO 27. That

was error. “[T]he proper test” is whether a case

meaningfully differs “from previous Bivens cases

decided by this Court,” not by the lower courts.

Abbasi, 582 U.S. at 139. Contrary to Respondent’s

assumption (at 25), the Fourth Circuit should not have

adhered to a circuit-level “status quo” that reflects

earlier expansions of Bivens inconsistent with this

Court’s recent decisions.

The Fourth Circuit—like the other circuits on its

side of the two splits discussed above—

misunderstands how strictly this Court has limited

the Bivens remedy it created. This Court should grant

certiorari to put that persistent question to bed.

III. This Case Is a Uniquely Good Vehicle for

Deciding These Important Questions

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

federal law-enforcement officers, across 94 agencies.

See Pet. 23. If the decision below is allowed to stand,

all of those officers could face potential liability for

“routine” law-enforcement interactions. The decision

below additionally imposes heavy societal costs—

including “discourag[ing] [such] law enforcement

officers from acting promptly and effectively,” FLEOA

Amicus Br. 10; “hinder[ing] [agencies’] ability to

attract and retain quality law enforcement officers,”

id. at 13; forcing officers to “take time away from

public safety duties to participate in protracted and

expensive discovery, depositions, and potential trial,”

FOP Amicus Br. 18; and posing obstacles for officers

11

seeking “to obtain mortgage loans and other forms of

credit,” id.

These are not “histrionics.” BIO 28. They are the

informed predictions of the Federal Law Enforcement

Officers Association, the National Fraternal Order of

Police, and its U.S. Park Police Labor Committee. No

amount of “notice” can erase these enduring harms;

nor can the possibility of qualified immunity or

indemnification by the government. BIO 27–30. That

is because the above harms stem from the prospect of

protracted lawsuits, in addition to personal liability

for out-of-pocket damages. Regardless, Respondent

admits (at 29) that not all Bivens defendants are

indemnified—meaning that, absent this Court’s

intervention, thousands of federal officers will be

unable to rule out the very real specter of life-changing

Bivens liability while protecting this country.

Respondent mistakenly asserts (at 28) that the

United States does not “take issue with” extending

Bivens to these new contexts. To the contrary, the

Department of Justice agrees that (1) officers who

“wear[ ] a different uniform” and have “unique

statutory authority”—like the Park Police—are “a

totally new category” of defendants “from the drugenforcement officers in Bivens,” Br. for Appellees at

16, Logsdon v. U.S. Marshals Serv., No. 23-7008 (10th

Cir. filed July 5, 2023); and (2) the fact that an “arrest

occur[s] outdoors and away from the plaintiff’s house

(also unlike Bivens) demonstrates . . . that this is a

new context,” id. at 8. The United States’ brief in

Egbert was not inconsistent: That brief merely noted

that the case did not involve “ordinary domestic lawenforcement functions.” BIO 28 (cleaned up). The

12

brief did not argue that cases that do are always

subject to Bivens claims.

2. Respondent’s attempts (at 30–31) to deem this

case a “poor vehicle” fail. Law-enforcement officers

improperly subjected to years of litigation on

unjustified claims are more—not less—“[ ]worthy of

this Court’s special protection.” BIO 30. And deciding

the legal question of whether a Bivens claim should be

created in the first place hardly “usurp[s] the central

role of the jury.” BIO 31.

Finally, the “posture of this case” is a virtue, not

a vehicle issue. BIO 30. Because the case went to a

jury verdict, it has a fully developed record, with none

of the potential pitfalls of an interlocutory appeal. The

jury awarded $730,000 in damages, even though the

bulk of the asserted emotional harms ostensibly arose

from Officer Ferreyra’s brandishing his gun at the

outset of the stop—lawful conduct preceding and

separate from the allegedly prolonged detention. See

BIO 4. The Court should take the opportunity to

evaluate the propriety of extending its judicially

created remedy in light of the fully developed record

in this case.

13

CONCLUSION

The Court should grant the petition for 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

December 14, 2023