Amicus Curiae Brief — Michael Boresky, in His Individual and Official Capacity as a Special Agent for the U.S. Secret Service, Petitioner v. Jeremy Graber

Supreme Court briefNov 13, 2023

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No. 23-384

IN THE

Supreme Court of the United States

————

MICHAEL BORESKY, IN HIS INDIVIDUAL AND

OFFICIAL CAPACITY AS A SPECIAL AGENT FOR THE

U.S. SECRET SERVICES,

Petitioner,

JEREMY GRABER,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

————

BRIEF OF THE COUNSEL OF PRISON

LOCALS C-33 AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

————

GREGORY K. MCGILLIVARY

Counsel of Record

MCGILLIVARY STEELE ELKIN LLP

1101 Vermont Avenue NW

Suite 1000

Washington, DC 20006

(202) 833-8855

gkm@mselaborlaw.com

Counsel for Amicus Curiae

November 13, 2023

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE .....................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

I. Bureau of Prison Employees are Regularly the Subject of Bivens Lawsuits ........

II. Courts Have Extended Bivens Remedies

in Cases Brought Against Correctional

Officers .......................................................

III. Bureau of Prison Employees Have Rightfully Immediately Appealed Erroneous

Bivens Decisions .......................................

A. Marquez v. Rodriquez .........................

B. Mohamed v. Jones ...............................

IV. Bureau of Prison Employees Face

Serious Consequences When Subject to

Bivens Litigation .......................................

A. A Lack of Interlocutory Appeal Affects

Correctional Officers Ability to

Perform Their Jobs ..............................

B. Correctional Officers Face Devasting

Personal Effects From Lengthy

Bivens Litigation .................................

C. Bureau of Prison Operations are

Impacted by Bivens Litigation ............

CONCLUSION ....................................................

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Bailey v. Rife,

Case No. 1:21-00424, 2021 WL 6496561

(S.D. W.Va. Nov. 19, 2021) .......................

Bell v. Wolfish,

441 U.S. 520 (1979) ................................... 14, 17

Bivens v. Six Unknown Fed. Narcotics

Agents,

403 U.S. 388 (1971) ................................... 1-18

Cain v. Paviglianti,

Case No. 2:20-cv-01768-JDP (PC), 2023

WL 3855284 (E.D. Cal. June 6, 2023) ......

Caraballo v. Pliler,

Case No. 21-CV-10476 (PMH), 2023 WL

3467185 (S.D.N.Y. May 15, 2023) ............

Carlson v. Green,

446 U.S. 14 (1980) ........................... 2, 6-9, 11-13

Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949) ...................................

3, 4

Davis v. Passman,

442 U.S. 288 (1979) ...................................

1, 2

Digital Equipment Corp. v. Desktop Direct,

Inc., 511 U.S. 863 (1994)...........................

Egbert v. Boule,

596 U.S. 482 (2022) ...................................

7, 9

Gambino v. Cassano,

Civil No. 17-0830 (NLH) (AMD), 2021

WL 1186794 (D.N.J. Mar. 30, 2021) ........

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Graber v. Boresky,

59 F.4th 603 (3d Cir. 2023) .......................

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ...................................

Hoffman v. Preston,

26 F.4th 1059 (9th Cir. 2022) ...................

Hoffman v. Preston,

Case No. 1:16-cv-01617-LJO-SAB (PC),

2019 WL 1865459 (E.D. Cal. Apr. 25,

2019) ..........................................................

Hoffman v. Preston,

Case No. 1:16-cv-01617-LJO-SAB (PC),

2019 WL 5188927 (E.D. Cal. Oct. 16,

2019) ..........................................................

Hoffman v. Preston,

No. 20-15396, 2022 WL 6685254

(9th Cir. Oct. 11, 2022) .............................

Landis v. Shellhammer,

Case No. 20 CV 50447, 2023 WL

6276521 (N.D. Ill. Sept. 26, 2023) ............

Mack v. Yost,

968 F.3d 311 (3d Cir. 2020) ......................

Marquez v. Rodriquez,

81 F.4th 1027 (9th Cir. 2023) ................... 11, 12

Marquez v. Rodriquez,

Case No.: 3:18-cv-0434-CAB-NLS, 2021

WL 2826075 (S.D. Cal. July 6, 2021) ... 8, 10, 11

Mitchell v. Forsyth,

472 U.S. 511 (1985) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Mohamed v. Jones,

Civil Action No. 20-cv-02516-RBJ-NYW,

2022 WL 523440 (D. Col. Feb. 22, 2022) .. 12, 13

Nixon v. Fitzgerald,

457 U.S. 731 (1983) ...................................

Pell v. Procunier,

417 U.S. 817 (1974) ...................................

Sabbath v. Hicks,

Civil Action No. 20-cv-00893-PAC-KMT,

2021 WL 1300602 (D. Col. Feb. 19, 2021)

Sandin v. Conner,

515 U.S. 472 (1996) ...................................

Scaff-Martinez v. Reese,

Case No. 1:10-cv-00549-CLS-HGD, 2012

WL 6754889 (N.D. Ala. Aug. 31, 2012) ....

Smith v. Trujillo,

Civil Action No. 20-cv-00877-RBJ,

NYW, 2021 WL 1799400 (D. Col.

Mar. 26, 2021) ...........................................

8, 9

Swint v. Chambers County Comm’n,

514 U.S. 35 (1995) .....................................

Turkmen v. Ashcroft,

Case No. 02-cv-02307 (DLI) (SMG), 2021

WL 4099495 (E.D.N.Y. Sept. 9, 2021) ......

Watanabe v. Derr,

Case No. 22-00168 JAO-RT, 2022 WL

1597396 (D. Haw. May 19, 2022) .............

Will v. Hallock,

546 U.S. 345 (2006) ................................... 4, 18

TABLE OF AUTHORITIES—Continued

Page(s)

Williams v. Baker,

487 F. Supp. 3d 918 (E.D. Cal. 2020) .......

Ziglar v. Abbasi,

582 U.S. 120 (2017) ...................................

2, 6

CONSTITUTION

U.S. Const. amend. I .................................... 6, 12

U.S. Const. amend. IV ..................................

U.S. Const. amend. V ................................. 1, 8, 11

U.S. Const. amend. VIII ..................... 2, 5-9, 11-13

U.S. Const. amend. XIV ...............................

STATUTES

28 U.S.C. § 1291 ...........................................

OTHER AUTHORITIES

Capstone Review of the Federal Bureau of

Prisons’ Response to the Coronavirus

Disease 2019 Pandemic, Dep’t of Justice,

Office of the Inspector General (March

2023), available at https://oig.justice.gov/

sites/default/files/reports/23-054.pdf ........ 17-18

Federal Bureau of Prisons, About Our

Agency, https://www.bop.gov/about/age

ncy/ (last accessed Oct. 24, 2023) .............

Federal Bureau of Prisons, Federal Bureau

of Prisons Fact Sheet (Sept. 11, 2023),

https://www.bop.gov/about/statistics/doc

s/bop_fact_sheet.pdf?v=1.0.8 ....................

TABLE OF AUTHORITIES—Continued

Page(s)

Federal Bureau of Prisons, Population

Statistics, https://www.bop.gov/mobile/ab

out/population_statistics.jsp (last accessed

Oct. 24, 2023) ............................................

Glenn Thrush, Short on Staff, Prisons

Enlist Teachers and Case Managers as

Guards (N.Y. Times, May 1, 2023),

https://www.nytimes.com/2023/05/01/us/p

olitics/prison-guards-teachers-staff.html ...

INTEREST OF AMICUS CURIAE1

The Council of Prison Locals C-33 is a Council within

the American Federal of Government Employees

(AFGE) that represents more than 30,000 bargaining

unit members. Its members include rank and file

employees of the Federal Bureau of Prisons, including

the Bureau’s Correctional Officers.

The decision of the Court of Appeals in Graber v.

Boresky, 59 F.4th 603 (3d Cir. 2023), should be reversed

because prohibiting defendants from immediately

appealing decisions extending the remedies available

pursuant to Bivens v. Six Unknown Fed. Narcotics

Agents, 403 U.S. 388 (1971), will interfere with the

duties of the Bureau of Prison employees, place

extreme burdens on the individual officers, and undermine the safety and security of federal correctional

facilities, as set forth below.

SUMMARY OF ARGUMENT

In Bivens v. Six Unknown Fed. Narcotics Agents, the

Supreme Court authorized a cause of action against

federal officials for violations of the Fourth Amendment. 403 U.S. 388 (1971). The Supreme Court has

since extended Bivens only twice, finding a new cause

of action for Fifth Amendment sex-discrimination

claims, Davis v. Passman, 442 U.S. 228 (1979), and for

Pursuant to Rule 37.6 of the Rules of this Court, amicus

states that no counsel for a party authored this brief in whole or

in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than the amicus or its counsel made a monetary

contribution to its preparation or submission. Pursuant to Rule

37.2, all parties received timely notice of the intent of the Council

of Prison Locals to file this brief.

a federal prisoner’s inadequate-care claim under the

Eighth Amendment, Carlson v. Green, 446 U.S. 14

(1980). Since then, the Court has made it clear that

expanding the Bivens remedy is a disfavored judicial

activity. Ziglar v. Abbasi, 582 U.S. 120, 135 (2017).

The Third Circuit’s finding that a decision extending

Bivens does not meet the collateral order doctrine for

immediate appeal failed to consider the burdens and

costs that make such a decision effectively unreviewable on final judgment.

Even though this Court has clearly found an implied

remedy under the Constitution only in the instances

enumerated in Bivens, Davis, and Carlson, see Abbasi,

582 U.S. at 131, courts have nonetheless extended

Bivens to new areas, subverting this Court’s clear

precedent and case law. When a court takes such an

erroneous action, the defendant must have the right to

immediately appeal that decision under the collateral

order doctrine.

Correctional Officers employed by the Federal

Bureau of Prisons (BOP), including those represented

by the Council of Prison Locals, are responsible for

maintaining the security of federal correctional facilities, and keeping the inmates, staff, and surrounding

communities safe. Correctional Officers are often sued

by prisoners in Bivens actions, and thus must bear

the costs and burdens that come along with such

litigation. While defending any lawsuit comes with

costs, the lack of interlocutory appeal right greatly

expands and increases these burdens.

Correctional Officers faced with defending a Bivens

lawsuit, without the right to immediate appeal, are

looking at potentially years-long litigation, including

discovery and trial. Officers are often on leave during

Bivens lawsuits, may have to pay out of pocket for

representation, and face ostracization from coworkers.

Additionally, the threat of these consequences may

cause Correctional Officers to second guess choices

and become more cautious in their decision-making

abilities, thereby threatening the safety and security

of the institutions.

Thus, the burdens, costs, and serious consequences

that result from defending a Bivens action without an

immediate appeal right make a district court decision

extending Bivens effectively unreviewable.

ARGUMENT

Generally, a Court of Appeals only has jurisdiction

over appeals “from all final decisions of the district

courts of the United States.” 28 U.S.C. § 1291. However,

a “small class” of collateral rulings that do not end the

litigation are deemed “final” and can be immediately

appealed. Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 545–46 (1949). Under the collateral order

doctrine, decisions that are conclusive, resolve important

questions on the merits, and are effectively unreviewable on appeal from the final judgment can be

immediately appealed. Swint v. Chambers County

Comm’n, 514 U.S. 35, 42 (1995); see also Cohen, 337

U.S. at 546 (such claims are “too important to be denied

review and too independent of the cause itself to

require that appellate consideration be deferred until

the whole case is adjudicated”).

The third factor — whether a decision is effectively

unreviewable — “cannot be answered without a

judgment about the value of the interests that would

be lost through rigorous application of a final judgment

requirement.” Digital Equipment Corp. v. Desktop Direct,

Inc., 511 U.S. 863, 878–79 (1994). Courts have held

that decisions that “would imperil a substantial public

interest” or “some particular value of a high order”

are effectively unreviewable and merit immediate

appeal. Will v. Hallock, 546 U.S. 345, 352–53 (2006).

For example, when finding that a decision regarding

absolute immunity met the collateral order doctrine,

this Court stressed that “compelling public ends” that

would be compromised helped meet the third Cohen

prong. Nixon v. Fitzgerald, 457 U.S. 731, 758 (1983). In

finding that a decision denying qualified immunity

was immediately appealable, this Court stated that

not allowing an appeal would threaten the disruption

of governmental functions, and the “fear of inhibiting

able people from exercising discretion in public service

if a full trial were threatened.” Will, 546 U.S. at 352

(citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

Thus, the “avoidance of a trial that would imperil a

substantial public interest” renders a decision effectively unreviewable. Will, 546 U.S. at 353.

A decision extending Bivens, like a decision on

absolute and qualified immunity, is effectively unreviewable because it significantly impacts a substantial

public interest — namely, the safety, security, and

operations of federal correctional facilities. See id. at

352 (stating that an important public value includes

the inhibition of federal officers “from exercising discretion in public service” (quotation marks omitted)).

I. Bureau of Prison Employees are Regularly

the Subject of Bivens Lawsuits.

The Federal Bureau of Prisons operates 122

correctional facilities, housing over 150,000 inmates,

across the country. Throughout the BOP, there are

over 12,000 Correctional Officers, and over 22,000

other employees.3 The BOP is responsible for

protecting the public safety and ensuring that the

federal inmates serve their sentences in facilities that

are safe and secure.4

Bureau of Prison employees, specifically Correctional

Officers, are some of the most targeted law enforcement officers with Bivens actions. The nature of

correctional work breeds complaints from inmates,

and inmates often attempt to redress grudges by

employing the judicial system to file Bivens cases

against Correctional Officers, seeking redress for the

many realities of federal prison. At least 100 Bivens

lawsuits are filed each year against BOP employees.

Most of these cases assert Eighth Amendment claims

for excessive force and deliberate interference to

health and safety, although prisoners also attempt to

assert violations of other Constitutional provisions.

E.g., Landis v. Shellhammer, Case No. 20 CV 50447,

2023 WL 6276521 (N.D. Ill. Sept. 26, 2023) (a federal

prisoner brought a Bivens action against Correctional

Officers at the U.S. Penitentiary in Thomson, Illinois

for Eighth Amendment violations stemming from excessive force and deliberate indifference to medical needs);

Cain v. Paviglianti, Case No. 2:20-cv-01768-JDP (PC),

2023 WL 3855284 (E.D. Cal. June 6, 2023) (prisoner at

Federal Bureau of Prisons, Population Statistics, https://

www.bop.gov/mobile/about/population_statistics.jsp (last accessed

Oct. 24, 2023).

Federal Bureau of Prisons, Federal Bureau of Prisons Fact

Sheet (Sept. 11, 2023), https://www.bop.gov/about/statistics/docs/

bop_fact_sheet.pdf?v=1.0.8

Federal Bureau of Prisons, About Our Agency, https://www.

bop.gov/about/agency/ (last accessed Oct. 24, 2023).

Federal Correctional Institution in Herlong, California

brought Bivens case against a Correctional Officer for

excessive force); Caraballo v. Pliler, Case No. 21-CV10476 (PMH), 2023 WL 3467185 (S.D.N.Y. May 15,

2023) (prisoner at Federal Correctional Institute in

Otisville, New York, brought Bivens action alleging a

First Amendment violation for retaliation, a Fourteenth

Amendment violation for medical negligence, and an

Eighth Amendment claim regarding inadequate and

unsanitary conditions of confinement).

Because of the limited Bivens remedy and the high

number of Bivens complaints filed by pro se prisoners,

many of the hundreds of complaints against Correctional

Officers are frivolous — they are either dismissed on

screening before action from the defendant is required,

or on a motion to dismiss. However, some Bivens

complaints are allowed to proceed past a motion to

dismiss and into discovery. Most often, these complaints fall into an already established Bivens remedy

category — like a deliberate indifference to medical

care claim under Carlson. E.g., Bailey v. Rife, Case No.

1:21-00424, 2021 WL 6496561 (S.D. W.Va. Nov. 19,

2021) (allowing a claim of deliberate indifference to

medical care to proceed while dismissing all other

claims); Watanabe v. Derr, Case No. 22-00168 JAO-RT,

2022 WL 1597396 (D. Haw. May 19, 2022) (denying a

motion to dismiss a claim of denial of adequate medical

care). However, despite this Court’s clear instructions,

some complaints are allowed to proceed under new

Bivens causes of action.

II. Courts Have Extended Bivens Remedies in

Cases Brought Against Correctional Officers.

Even though this Court has repeatedly cautioned

against extending Bivens, see Abbasi, 582 U.S. at 135,

district and appellate courts still regularly extend the

Bivens remedy in cases brought against Correctional

Officers and other BOP employees.

In Williams v. Baker, Plaintiff Shannon Williams, a

federal inmate, brought an Eighth Amendment excessive

force claim against Correctional Officer Baker. 487 F.

Supp. 3d 918, 921 (E.D. Cal. 2020). In analyzing

whether there was a cognizable Bivens action, the

magistrate judge stated that there was a “modest

extension, but an extension nonetheless,” finding that

the claim was meaningfully different than the claim

brought in Carlson. Id. at 922–23. Additionally, the

judge found that no special factors “counseled hesitation” in extending Bivens. Id. at 930; see also Abassi,

582 U.S. at 136 (stating that a Bivens remedy is not

available if there are special factors counselling hesitation). Therefore, Williams stated a cognizable Bivens

action against officer Baker. Id.5

In Gambino v. Cassano, Plaintiff David Gambino, an

inmate at Federal Correctional Institution Fort Dix in

New Jersey, brought a Bivens claim against various

BOP employees, alleging in part an Eighth Amendment

violation due to the conditions in the Special Housing

Unit. Civil No. 17-0830 (NLH) (AMD), 2021 WL

1186794, at *5 (D.N.J. Mar. 30, 2021). In dismissing the

case, the district court noted that the Supreme Court

had not explicitly held that a Bivens Eighth Amendment remedy extended to conditions of confinement

claims, but that the “Bivens remedy extends to

Eighth Amendment conditions of confinement claims,”

nonetheless. Id.

This case was decided before the Supreme Court ruled in

Egbert v. Boule that a Bivens remedy did not extend to Eighth

Amendment excessive force claims. 596 U.S. 482 (2022).

In Marquez v. Rodriquez, discussed in more detail

below, pre-trial detainee Steve Marquez filed a Bivens

action alleging his right to be free from deliberate

indifference to health and safety was violated while at

the Metropolitan Correctional Center (MCC) in San

Diego, California. Case No.: 3:18-cv-0434-CAB-NLS,

2021 WL 2826075 (S.D. Cal. July 6, 2021). He alleged

that Correctional Officers Rodriguez and Kelly denied

his requests for protective custody which resulted in

him being assaulted. Id. at *3. In ruling on a motion to

dismiss, the district court found the claim arose in a

new Bivens context because it presented a Due Process

claim for failure to protect under the Fifth Amendment

rather than the Eighth Amendment. Id. at *7 (“[T]he

Court finds that Plaintiff ’s Fifth Amendment failure to

protect claim would extend Bivens to a new context[.]”).

In analyzing the special factors, the district court

found that while such factors may counsel hesitation

against extending Bivens, the defendants did not make

the appropriate showing at the time and denied the

motion to dismiss on that claim. Id. at *14.

In Smith v. Trujillo, Plaintiff Joseph Smith brought

an Eighth Amendment claim for excessive force and an

Eighth Amendment claim for deliberate indifference

against Correctional Officers at Federal Correctional

Institution Florence. Civil Action No. 20-cv-00877RBJ, NYW, 2021 WL 1799400, at *2 (D. Col. Mar. 26,

2021). The magistrate judge, in analyzing the excessive force claim, found that the already established

deliberate indifference claim in Carlson covered an

excessive force claim, and that the facts did not

present a new Bivens context. Id. at *4; see also id.

at *5 (finding “no meaningful difference between

the deliberate indifference claim in Carlson and Mr.

Smith’s excessive force claim – both arising under the

Eighth Amendment”). Further, the judge found that

even if the claim did arise in a new context, special

factors did not counsel against hesitation in extending

Bivens. Id. at *6.6 Therefore, it was recommended that

the motion to dismiss be denied as to the Eighth

Amendment claim.

In Hoffman v. Preston, Plaintiff Marcellas Hoffman,

an inmate at U.S. Penitentiary Atwater in Atwater,

California, brought a Bivens action against Correctional

Officer Preston, alleging that Preston had labeled him

as a snitch, and offered a bounty to assault him, which

led to his assault and injuries. Case No. 1:16-cv-01617LJO-SAB (PC), 2019 WL 5188927, at *3 (E.D. Cal. Oct.

16, 2019). The district court found that the Eighth

Amendment Bivens remedy in Carlson for failure to

provide medical care did not cover Plaintiff ’s case and

dismissed the claim. Id. at *5.

Plaintiff appealed, and on appeal in the Ninth

Circuit, the Court of Appeals agreed that the claims

arose in a new context that is “different in a modest

way” from Carlson. Hoffman v. Preston, 26 F.4th 1059,

1065 (9th Cir. 2022). However, the Court of Appeals

found that no special factors counseled against

hesitation in allowing a Bivens remedy “for a federal

prison inmate alleging that a prison guard intentionally targeted him for harm and failed to protect him

from the predictable harm that resulted.” Id.7

As shown, Correctional Officers are often the subject

of erroneous attempts to extend Bivens remedies.

This case was decided before the Supreme Court ruled in

Egbert v. Boule that a Bivens remedy did not extend to Eighth

Amendment excessive force claims. 596 U.S. 482 (2022).

After Egbert was decided, the Ninth Circuit affirmed the

District Court’s decision dismissing the case. Hoffman v. Preston,

No. 20-15396, 2022 WL 6685254 (9th Cir. Oct. 11, 2022).

If the Third Circuit’s ruling is allowed to stand, such

erroneous decisions in these cases will not be immediately appealable, thus having a significant impact on

Correctional Officers.

III. Bureau of Prison Employees Have Rightfully Immediately Appealed Erroneous

Bivens Decisions.

Should the Third Circuit’s erroneous ruling be

allowed to stand, Bureau of Prison employees will face

serious consequences from the inability to immediately appeal an erroneous Bivens ruling. In previous

cases, when courts have wrongly extended Bivens,

Correctional Officers have immediately appealed, and

won.

A. Marquez v. Rodriquez

Plaintiff Steve Marquez brought a Bivens action

alleging that his right to be free from deliberate

indifference to health and safety was violated while a

pre-trial detainee at MCC San Diego. Marquez, 2021

WL 2826075 (S.D. Cal. July 6, 2021). Specifically,

Marquez was charged with sex crimes and requested

he be placed in protective custody to protect him from

other inmates. Id. at *1. According to Marquez,

Correctional Officer Rodriguez denied this request and

placed Marquez in the general population. Id. Marquez

was threatened and tortured by other inmates,

requiring hospitalization. Id. at *2. He then requested

from Correctional Officer Kelly to be placed in protective custody, and this request was also denied. Id.

Marquez claims that Correctional Officers Rodriquez

and Kelly were “deliberately indifferent to the substantial risk of serious harm or injury” when they

ignored and denied his request to be placed in

protective custody. Id. at *3.

The officers brought a motion to dismiss, arguing in

part that the claim extends Bivens to a new context

which is precluded. Id. at *1. In denying this part of

the motion, the district court first found that the claim

does indeed arise in a new Bivens context. Id. at *4.

Because Marquez was a pre-trial detainee, his claim

fell under the Fifth Amendment Due Process Clause,

rather than the Eighth Amendment’s cruel and

unusual punishment protections. Id. Therefore, the

court concluded that the “recognition of a damages

remedy here would be at least a modest extension of

Bivens to a new context because a federal pre-trial

detainee’s failure to protect claim is different in a

meaningful way from the . . Eighth Amendment claim

in Carlson.” Id. at *8.

Then, the district court considered whether special

factors prevent an extension of Bivens. While the court

noted that the factors “may” counsel hesitation in

permitting Plaintiff to proceed with his claim, the

court found that at the time, Defendants had not made

the appropriate showing. Id. at *14. Thus, the court

denied the motion to dismiss.

Following the denial, the Correctional Officers filed

an interlocutory appeal. The Ninth Circuit Court of

Appeals reversed, holding that Marquez did not have

a cognizable Bivens claim. Marquez v. Rodriquez, 81

F.4th 1027 (9th Cir. 2023). The Ninth Circuit agreed

that the claim arose in a new Bivens context, because

it arose under a different amendment and alleged a

different category of harm, in a different factual

setting than the previously approved claims. Id. at

1032. The Court of Appeals found that special factors

counseled against extending Bivens. Specifically, the

Court found that other remedies were available, such

as challenging his placement through an administrative

review process. Id. at 1033. Further, Congress has

already legislated on prison administration without

providing a remedy against jail officials. Id. Thus, the

district court erred in finding that Marquez had a

viable Bivens claim and dismissed his claims against

the Correctional Officers.

B. Mohamed v. Jones

Plaintiff Khalfan Khamis Mohamed is an inmate at

the U.S. Penitentiary Florence ADMAX in Florence,

Colorado. Mohamed v. Jones, Civil Action No. 20-cv02516-RBJ-NYW, 2022 WL 523440, at *1 (D. Col. Feb.

22, 2022). Mohamed declared a hunger strike and,

following policy, Correctional Officers removed food

items from his cell after he refused his ninth consecutive meal. While Plaintiff was being escorted back to

his cell, Officer Brush allegedly assaulted Plaintiff,

while Officer Armijo and Lieutenant Murton watched.

Id. at *3. Then, a prison nurse allegedly refused to

provide an x-ray, pain medication, or ice for Plaintiff ’s

injuries. Id. at *4.

Plaintiff asserted various Bivens claims, including

Eighth Amendment excessive force claims, failure to

intervene claims, and deliberate indifference claims,

as well as a First Amendment claim. Id. at *5. The

magistrate judge found that the First Amendment

claim arose in a new Bivens context, and that special

factors counseled against extending Bivens, thereby

recommending that the claim be dismissed. Id. at *12.

Regarding the Eighth Amendment excessive force

claims, the magistrate judge found that Plaintiff ’s

claims did not present a new Bivens context. Id. at *14.

While the case presented a different factual scenario,

the judge found “no meaningful difference between the

deliberate indifference claim raised in Carlson and

Mr. Mohamed’s excessive force claims, which all arise

under the Eighth Amendment.” Id. The judge also

noted that even if the claims arose in a new context,

no special factors would counsel against extending a

Bivens remedy. Id. at *15. Similarly, in analyzing the

Eighth Amendment failure to intervene claims, the

judge again found that Plaintiff ’s case did not present

a new Bivens context, because it was factually similar

to Carlson. Id. at 18. Again, the judge noted that even

if the claims arose in a new context, no special factors

would counsel against extending a Bivens remedy. Id.

Over Defendants’ objections to the magistrate

judge’s report and recommendation, the district court

accepted and adopted the findings. See Mohamed v.

Jones, Civil Action No. 20-cv-02516-RBJ, NYW, Dkt.

120. Defendants then filed a motion for reconsideration, which was denied. See id. at Dkts. 129, 150.

Defendants then filed an interlocutory appeal of the

denial of the motion for reconsideration that Plaintiff

had asserted cognizable Bivens claims under the

Eighth Amendment. See id. at Dkt. 156. The appeal is

still pending.

Both of these cases represent examples of Correctional

Officers immediately appealing a ruling that a new,

not previously recognized, Bivens action can proceed to

discovery. Without the right to an interlocutory appeal,

these officers would have been forced to litigate the

case, going through arduous discovery and trial, only

for—in the case of Rodriquez—an appellate court to

find that a Bivens action never actually existed.

IV. Bureau of Prison Employees Face Serious

Consequences When Subject to Bivens

Litigation.

Not allowing Correctional Officers to immediately

appeal a decision finding a new Bivens cause of action

threatens the safety and security of federal prisons,

has detrimental effects on the officers, and places a

burden on Bureau of Prison operations.

A. A Lack of Interlocutory Appeal Affects

Correctional Officers Ability to Perform

Their Jobs.

Correctional Officers and other BOP staff have one

overarching duty — to maintain the safety and

security of the institution, including the inmates, staff,

and surrounding community. See Pell v. Procunier, 417

U.S. 817, 823 (1974) (“Central to all other correctional

goals is the institutional consideration of internal

security within the corrections facilities themselves.”);

see also Sabbath v. Hicks, Civil Action No. 20-cv-00893PAC-KMT, 2021 WL 1300602, at *5 (D. Col. Feb. 19,

2021) (stating that prisons have “unique security and

administrative challenges”). For Correctional Officers

to do their jobs safely and effectively, they need a wide

range of deference “in the adoption and execution

of policies and practices that in their judgment are

needed to preserve internal order and discipline and

to maintain institutional security.” Bell v. Wolfish, 441

U.S. 520, 547 (1979); see also Scaff-Martinez v. Reese,

Case No. 1:10-cv-00549-CLS-HGD, 2012 WL 6754889,

at *13 (N.D. Ala. Aug. 31, 2012) (“Maintaining safety

and security is an essential goal of prison authorities

who must be free to take appropriate action to ensure

the safety [of] inmates and staff.”).

If a Correctional Officer faces the threat of lengthy

litigation without the recourse of appeal until after

discovery, dispositive motions proceedings, and (potentially) trial, that can result in them second-guessing

decisions related to safety and security, and impact

how they do their jobs. Correctional Officers might

hesitate in making a decision or intervening in a

situation that is necessary to keep the institution safe,

if they know that they have no right to appeal an

erroneous Bivens decision. See Mack v. Yost, 968 F.3d

311, 320 (3d Cir. 2020) (stating that the “threat of

liability” may impact an “officer’s ability to serve the

public”); Turkmen v. Ashcroft, Case No. 02-cv-02307

(DLI) (SMG), 2021 WL 4099495, at *5 (E.D.N.Y. Sept.

9, 2021) (defending a Bivens suit can impact “wardens

and supervisory officials from performing their duties,

and the possibility of wardens adopting supervisory

practices they otherwise might not because they may

be accountable for failing to monitor and control the

actions of officers under their command”); Harlow v.

Fitzgerald, 457 U.S. 800, 816 (1982) (consequences

include “the general costs of subjecting officials to the

risks of trial – distraction of officials from their governmental duties, inhibition of discretionary action,

and deterrence of able people from public service”).

Therefore, extending the Bivens remedy without an

immediate appeal right can having a chilling effect on

life and death decisions that Correctional Officers

must make to keep institutions safe.

Additionally, Correctional Officers subject to Bivens

actions face potential ostracization from their colleagues — they lose credibility when they are sued.

The nature of prisons makes it crucial for Correctional

Officers to work together to keep inmates and staff

safe; they must rely on each other in dangerous

situations and trust each other completely. When an

officer loses that credibility and trust due to being the

subject of a Bivens action, the safety and security of

federal prisons is threatened.

B. Correctional Officers Face Devasting

Personal Effects From Lengthy Bivens

Litigation.

A Bivens action brought against a Correctional

Officer with no right to immediately appeal an erroneous decision also has devasting personal effects.

When an officer is sued, they can request representation

through the Bureau of Prisons, but such representation

is not guaranteed. If they are not afforded representation, they are forced to pay out of pocket to defend

against the Bivens action.

There is undoubtedly a huge difference in the cost of

defending a Bivens action depending on whether there

is a right to immediately appeal a finding of a new

Bivens remedy. If this Court grants the petition and

reverses the Third Circuit, then costs of defending

a Bivens action include the filing and defending of

a motion to dismiss, and then the corresponding

immediate appeal, should the motion be denied. If the

Third Circuit’s ruling is allowed to stand, then the

costs of defending a Bivens action also include lengthy,

potentially years long discovery process, dispositive

motions briefing, and a potential trial. Particularly if

a Correctional Officer is forced to front the costs of

representation out of pocket, this difference in cost can

be ruinous. Forcing a Correctional Officer to pay for

years long litigation, only for a court to eventually find

that no cause of action existed, would cause devasting

financial impacts, putting an immense strain on

Officers and their families.

C. Bureau of Prison Operations

Impacted by Bivens Litigation.

are

In addition to the impact on safety and security, and

the personal lives of Correctional Officers, a lack of a

right to immediately appeal also burdens Bureau of

Prison operations. See Sandin v. Conner, 515 U.S. 472,

483 (1996) (courts must “afford appropriate deference

and flexibility to [prison] officials trying to manage a

volatile environment”); Bell, 441 U.S. at 562 (courts

have “become increasingly enmeshed in the minutiae

of prison operations” and the “inquiry of federal courts

into prison management must be limited”). The burden

of extended Bivens litigation against Correctional

Officers undoubtedly could impact prison operations,

policies, and protocols. Because of the “complexities of

prison administration,” there are “wide-ranging impact[s]

on government operations that can develop from

court-created remedies.” Hoffman v. Preston, Case No.

1:16-cv-01617-LJO-SAB (PC), 2019 WL 1865459, at *7

(E.D. Cal. Apr. 25, 2019).

Further, Correctional Officers who are the subject of

Bivens litigation are often placed on administrative

leave as a result of the underlying conduct. This

administrative leave can last for years while litigation

in both the civil and criminal systems is ongoing — in

one facility, two Correctional Officers have been on

administrative leave for approximately three years.

When they are on leave, the BOP cannot replace them

or fill their position. This results in staffing issues

when many BOP facilities are already short staffed.8

Capstone Review of the Federal Bureau of Prisons’ Response

to the Coronavirus Disease 2019 Pandemic, Dep’t of Justice,

Office of the Inspector General (March 2023), at 45, available at

Moreover, an expansion of Bivens liability without

the right to appeal, and the fear of corresponding

costly litigation, will adversely impact BOP’s ability to

recruit and retain employees, exacerbating the staffing

shortage. These impacts on staffing can lead to an

increase in prison violence.9 If Correctional Officers

are forced to endure years long Bivens litigation, BOP

operations will continue to suffer under the strain of

staffing issues.

Maintaining the safety and security of federal

correctional facilities is a substantial public interest

that is imperiled by the lack of right to immediately

appeal, thus, making a decision extending Bivens

effectively unreviewable. See Will, 546 U.S. at 352–53.

https://oig.justice.gov/sites/default/files/reports/23-054.pdf (As of

September 2022, 21% of authorized Correctional Officer positions

were vacant, and the number of onboarded Correctional Officers

declined from 17,114 in September of 2012 to 16,153 at the end of

September of 2022).

Glenn Thrush, Short on Staff, Prisons Enlist Teachers and

Case Managers as Guards (N.Y. Times, May 1, 2023), https://

www.nytimes.com/2023/05/01/us/politics/prison-guards-teachersstaff.html

CONCLUSION

For the foregoing reasons, the petition should be

granted and this Court should reverse the judgment of

the court of appeals.

Respectfully submitted,

GREGORY K. MCGILLIVARY

Counsel of Record

MCGILLIVARY STEELE ELKIN LLP

1101 Vermont Avenue NW

Suite 1000

Washington, DC 20006

(202) 833-8855

gkm@mselaborlaw.com

Counsel for Amicus Curiae

November 13, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.