Petition for Writ of Certiorari — Joseph Randolph Mays, Petitioner v. T. B. Smith, Warden, et al.

Supreme Court briefDec 29, 2023

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No. 23-___

IN THE

Supreme Court of the United States

JOSEPH RANDOLPH MAYS,

Petitioner,

T.B. SMITH, WARDEN, S. MA’AT, JAMIE HOSKINS, V.

WILLIS, J. HALFAST, R. MARTIN, LT. CHRISTOPHER,

LT. K. HENDRY, OFFICER V. WILKINS, OFFICER

GLASS, OFFICER SLAYDON, OFFICER LASSITER, J.

CARAWAY, AND JOHN/JANE DOES,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

ANNE MARIE LOFASO

WEST VIRGINIA

UNIVERSITY

COLLEGE OF LAW

U.S. SUPREME COURT

LITIGATION CLINIC

101 Law Center Dr.

Morgantown, WV 26506

LAWRENCE D. ROSENBERG

Counsel of Record

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

ldrosenberg@jonesday.com

Counsel for Petitioner Joseph Randolph Mays

QUESTION PRESENTED

In Davis v. Passman, 442 U.S. 228 (1979) and Carlson v. Green, 446 U.S. 14 (1980), this Court made clear

that claims for gender discrimination and claims by

federal inmate prisoners against prison officials are

cognizable under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971). However, recent Supreme Court decisions in

Ziglar v. Abbasi, 582 U.S. 120 (2017) and Egbert v.

Boule, 596 U.S. 482 (2022) have created confusion in

the lower courts as to whether the original cases finding valid Bivens claims retain vitality in light of these

recent decisions. This case involves a run-of-the mill

race discrimination employment claim by a federal inmate prisoner against prison officials, yet the courts

below found that this case presented a new, impermissible context under Bivens.

Petitioner was a federal inmate prisoner who

worked a factory job at the federal institution where

he was imprisoned. He was discriminated against on

the basis of his race during the commission of his job,

and was also fired from that job on the basis of his race.

The question presented is: May a prisoner bring a

suit for damages under Bivens based on claims of racial discrimination, or have Abbasi and Egbert eliminated Bivens claims for all actions except those that

are factually identical to Bivens, Davis, or Carlson?

PARTIES TO THE PROCEEDING

The parties to the proceedings below were Petitioner Joseph Randolph Mays as plaintiff-appellant

and Respondents T.B. Smith, Warden, S. Ma’at, Jamie

Hoskins, V. Willis, J. Halfast, R. Martin, Lt. Christopher, Lt. K. Hendry, Officer V. Wilkins, Officer Glass,

Officer Slaydon, Officer Lassiter, J. Caraway, and

John/Jane Does as defendants-appellees. There are

no corporate parties requiring a disclosure statement

under Supreme Court Rule 29.6.

STATEMENT OF RELATED PROCEEDINGS

Fourth Circuit: Joseph Randolph Mays v. T.B.

Smith, et al., No. 20-7450 (Judgment Entered June 6,

2023).

United States District Court for the Eastern District of North Carolina: Joseph Randolph Mays v. T.B.

Smith, et al., No. 5:18-CT-3186-FL (Judgment Entered September 30, 2020).

iii

TABLE OF CONTENTS

Page

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

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

STATEMENT OF RELATED PROCEEDINGS....... ii

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

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

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

JURISDICTION ......................................................... 4

CONSTITUTIONAL PROVISIONS INVOLVED .......................................................... 5

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

Factual Background.............................. 5

Procedural History .............................. 10

REASONS FOR GRANTING THE PETITION ...... 13

The Lower Court Decisions Conflict

With This Court’s Precedent Allowing

Bivens Claims For Gender Discrimination in the Employment Context and by

Prison-Inmate Plaintiffs ................................ 13

The Original Bivens Precedent

Provided Claims for Gender Discrimination and for Prison-Inmate Plaintiffs .................................... 13

The Recent Decisions in Abbasi

and Egbert Limit Bivens in the

National Security Context .................. 15

TABLE OF CONTENTS

(continued)

The Fourth Circuit’s Decision

Conflicts with Both this Court’s

Original Precedent and Recent

Decisions ............................................. 16

II.

The Fourth Circuit’s Decision Deepens

A Circuit Split ................................................ 19

III.

The Question Presented Is Exceptionally Important And Recurring ...................... 26

IV.

The Decision Below Is Wrong ....................... 29

This Case Is An Ideal Vehicle To Resolve The Question Presented ....................... 34

CONCLUSION ......................................................... 35

APPENDIX A: Opinion of the United States

Court of Appeals for the Fourth Circuit

(June 6, 2023) .......................................................... 1a

APPENDIX B: Amended Order of the United

States District Court for the Southern District

of Florida (June 6, 2023) ....................................... 18a

APPENDIX C: Denial of Petition for Rehearing by the United States Court of Appeals for

the Fourth Circuit (August 4, 2023) .................... 20a

APPENDIX D: Plaintiff’s Complaint Filed in

the United States District Court for the Eastern District of North Carolina (June 3, 2019) ..... 22a

APPENDIX E: UNICOR Work Performance

Document (August 11, 2016)................................. 86a

TABLE OF CONTENTS

(continued)

APPENDIX F: Pro Se Prisoner Complaint

Filed in the United States District Court for

Eastern District of North Carolina (July 23,

2018) ...................................................................... 88a

APPENDIX G: Order and Judgement by the

United States District Court for the Eastern

District of North Carolina (September 30,

2020) .....................................................................105a

TABLE OF AUTHORITIES

Page(s)

CASES

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) .......................................... 2, 14

Snowden v. Henning,

72 F.4th 237 (7th Cir. 2023) ................................ 25

Belfrey-Farley v. Palmer,

No. 3:19-cv-1305-S-BT, 2021 WL

2814885 (N.D. Tex. May 7, 2021) ........................ 23

Bentley v. Beck,

625 F.2d 70 (5th Cir. 1980) ............................ 15, 22

Bistrian v. Levi,

912 F.3d 79 (3d Cir. 2018) .................... 3, 11, 19-21

Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics,

403 U.S. 388 (1971) ...................... 1-4, 10-26, 28-35

Bolling v. Sharpe,

347 U.S. 497 (1954) ........................ 2, 14, 17, 27, 32

Cain v. Rinehart,

No. 22-1893, 2023 WL 6439438

(6th Cir. July 25, 2023) ........................................ 26

Carlson v. Green,

446 U.S. 14 (1980) ...................................1-3, 11-13,

15-19, 25, 26, 29, 32

City of Cleburne, Tex. v. Cleburne

Living Ctr.,

473 U.S. 432 (1985) .............................................. 14

vii

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ................................................ 28

Craig v. Boren,

429 U.S. 190 (1976) .......................................... 2, 14

Davis v. Passman,

442 U.S. 228 (1979) ................................ 1-3, 12-19,

21, 25-27, 29, 31, 32

Department of Navy v. Egan,

484 U.S. 518 (1988) .............................................. 30

Dyer v. Smith,

56 F.4th 271 (4th Cir. 2022) ................................ 11

Egbert v. Boule,

596 U.S. 482 (2022) .................... 1-4, 11, 12, 15, 16,

18, 19, 21-26, 28-30, 32, 33

Farmer v. Brennan,

511 U.S. 825 (1994) .............................................. 20

Haig v. Agee,

453 U.S. 280 (1981) .............................................. 32

Hernandez v. Mesa,

589 U.S. ----, 140 S. Ct. 735 (2020) .......... 24, 25, 28

Hudson v. Palmer,

468 U.S. 517 (1984) .................................. 15, 18, 33

Ingram v. Papalia,

804 F.2d 595 (10th Cir.1986) ............................... 22

Jacobs v. Alam,

915 F.3d 1028 (6th Cir. 2019) .............................. 25

Lanuza v. Love,

899 F.3d 1019 (9th Cir. 2018) .............................. 25

viii

Marbury v. Madison,

5 U.S. 137 (1803) ............................................ 27, 28

Minneci v. Pollard,

565 U.S. 118 (2012) .............................................. 28

Moore v. U.S. Dep't of Agric. on Behalf

of Farmers Home Admin.,

993 F.2d 1222 (5th Cir. 1993) .................... 3, 22, 23

Morrison v. Garraghty,

239 F.3d 648 (4th Cir. 2001) ................................ 14

Ross v. Blake,

578 U.S. 632 (2016) .............................................. 33

Roudabush v. Milano,

714 F. App’x 208 (4th Cir. 2017)...................... 4, 24

Schweiker v. Chilicky,

487 U.S. 412 (1988) .............................................. 30

Shorter v. United States,

12 F.4th 366 (3d Cir. 2021) .................................. 20

Silva v. United States,

45 F.4th 1134 (10th Cir. 2022) ............................ 22

Tate v. Harmon,

54 F.4th 839 (4th Cir. 2022) ................................ 24

Vega v. United States,

881 F.3d 1146 (9th Cir. 2018) ........................ 25, 26

Veney v. Wyche,

293 F.3d 726 (4th Cir. 2002) ................................ 14

Webb v. McQuade,

2022 WL 136464

(W.D. Tex. Jan. 14, 2022) ................................ 3, 23

Wilkie v. Robbins,

551 U.S. 537 (2007) .............................................. 28

Williams v. Meese,

926 F.2d 994 (10th Cir. 1991) .......................... 3, 21

Xi v. Haugen,

68 F.4th 824 (3d Cir. 2023) ............................ 20, 21

Ziglar v. Abbasi,

582 U.S. 120 (2017) .......................... 1-4, 11, 15, 16,

18, 19, 20-26, 28-31, 33, 34

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const. amend V ............................ 3, 5, 10, 11, 13,

14, 17-23, 26, 27, 32

U.S. Const. amend XIV ......................................... 5, 27

42 U.S.C. § 1983 .................................................... 4, 24

Civil Rights Act of 1964 ............................................ 27

Prison Litigation Reform Act ............................. 12, 34

OTHER AUTHORITIES

Joanna C. Schwartz, Federal Courts, Practice

& Procedure: Going Rogue: The Supreme

Court’s Newfound Hostility to PolicyBased Bivens Claims,

96 Notre Dame L. Rev. 1835 (2021) .............. 28, 29

INTRODUCTION

Petitioner was discriminated against by prison officials on the basis of his race and sought damages under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971); however, the

district court and Fourth Circuit determined that Petitioner’s claims present a new context under Bivens

and that special factors counsel against extending

Bivens to Petitioner’s claims.

The rulings below conflict with this Court’s precedent and deepen a circuit split. This Court made clear

in Davis v. Passman, 442 U.S. 228 (1979) and Carlson

v. Green, 446 U.S. 14 (1980), that claims for gender

discrimination and claims by federal inmate prisoners

against prison officials are cognizable under Bivens.

However, in Ziglar v. Abbasi, 582 U.S. 120 (2017) and

Egbert v. Boule, 596 U.S. 482 (2022), this Court narrowed the scope of claims that are cognizable under

Bivens. In Abbasi, the Court noted that “a case can

present a new context for Bivens purposes if it implicates a different constitutional right; if judicial precedents provide a less meaningful guide for official conduct; or if there are potential special factors that were

not considered in previous Bivens cases.” 582 U.S. at

148. However, a case must be different from previous

Bivens cases decided by the Supreme Court “in a

meaningful way.” Id. at 139 (emphasis added). In Egbert, the Court added an additional requirement for

courts to consider when determining whether a claim

is cognizable under Bivens—whether “‘Congress is in

a better position to decide whether or not the public

interest would be served’ by imposing a damages action.” 596 U.S. at 499 (quoting Bush v. Lucas, 462 U.S.

367, 390 (1983)). Since these rulings, there has been

substantial confusion in the lower courts as to what

constitutes a “meaningful difference”—and whether

the prior cases retain any vitality.

Taking the position that the prior Bivens cases do

not retain vitality except in circumstances where the

facts are identical to the prior precedent, the district

court improperly concluded that Petitioner’s case presented a new, impermissible context under Bivens.

The Fourth Circuit affirmed. However, these decisions conflict with prior Supreme Court precedent.

Federal law requires that treatment based on racial

classifications receive a stricter level of scrutiny by

courts than treatment based on gender classifications.

Compare Adarand Constructors, Inc. v. Pena, 515 U.S.

200, 201 (1995) (racial classifications receive strict

scrutiny) with Craig v. Boren, 429 U.S. 190 (1976)

(gender classifications receive intermediate scrutiny).

And this Court in Davis found that claims based on

gender discrimination are cognizable under Bivens.

Davis, in turn, relied on race discrimination precedent.

See Bolling v. Sharpe, 347 U.S. 497 (1954). Therefore,

it follows that claims based on racial discrimination,

as are present here, must also be cognizable under

Bivens. That Petitioner was employed while incarcerated should not change this analysis because Petitioner’s employment discrimination claims are not

unique to the prison context—and are therefore not

“meaningfully” different from the claims in Davis.

But even if Petitioner’s status as an inmate were relevant, this Court allowed Bivens claims by inmates in

Carlson. Petitioner’s claims also do not implicate national security issues in any way—making the limitations imposed by Abbasi and Egbert inapposite. In

short, there is simply no legitimate reason to distinguish the claims here from those in Davis and Carlson.

Therefore, the lower courts’ conclusions that Abbasi

and Egbert change the Bivens analysis under all circumstances and in such a way that any case that is

not factually identical to either Bivens, Davis, or Carlson presents a new, impermissible context are wrong

and inconsistent with this Court’s precedent.

Moreover, the Fourth Circuit’s decision deepens a

circuit split. The Third Circuit holds that the prior

Supreme Court decisions retain vitality following Abbasi and Egbert, such that prisoners asserting claims

for violations of their Fifth Amendment rights do present cognizable claims under Bivens. See, e.g., Bistrian v. Levi, 912 F.3d 79, 90 (3d Cir. 2018) (holding

that “an inmate’s claim that prison officials violated

his Fifth Amendment rights by failing to protect him

against a known risk of substantial harm does not present a new Bivens context”). And the Tenth Circuit

has not revisited its similar holding. See, e.g., Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991)

(holding that a plaintiff's race discrimination claim

based on the Fifth Amendment properly stated a

claim for relief under Bivens). The Fifth Circuit used

to permit Bivens claims based on racial discrimination

prior to Abbasi, but district courts within the circuit

have more recently relied on Abbasi to prohibit such

claims. Compare Moore v. U.S. Dep't of Agric. on Behalf of Farmers Home Admin., 993 F.2d 1222, 1222-23

(5th Cir. 1993) (finding an inmate alleging racial discrimination presented a valid Bivens claim) with Webb

v. McQuade, 2022 WL 136464, at *7 (W.D. Tex. Jan.

14, 2022) (finding that racial discrimination claims

present a new context under Bivens and special factors counsel against extending Bivens to such claims).

Through the decision below, the Fourth Circuit has

now changed its position regarding Bivens claims

based on racial discrimination in light of Abbasi and

Egbert—having previously held that an inmate’s

equal protection claims based on racial discrimination

allegedly committed by federal correctional officers

are cognizable under Bivens and 42 U.S.C. § 1983. See

Roudabush v. Milano, 714 F. App'x 208, 210-11 (4th

Cir. 2017) (remanding an inmate’s race discrimination

suit for further proceedings because he stated a valid

claim).

The question presented is important and recurring.

It is important to ensure that courts understand the

circumstances under which Bivens remedies remain

available to plaintiffs. And this case is an ideal vehicle

to address the question here, as it is cleanly and

squarely presented and there are no alternative

grounds on which the courts below based their rulings.

Because the ruling below conflicts with this Court’s

decisions as well as decisions from other courts over

an important and recurring issue, this Court should

grant certiorari and answer the question presented.

OPINIONS BELOW

The opinion of the Fourth Circuit is unpublished

and is reproduced at Pet.App.1a-19a.

JURISDICTION

The Fourth Circuit issued its decision and judgment on June 6, 2023 (Pet.App.1a-19a) and denied rehearing and rehearing en banc on August 4, 2023

(Pet.App.20a-21a). On October 25, 2023, Chief Justice

Roberts extended the time to file this petition until

December 29, 2023. No. 23A367 (U.S.). This Court

has jurisdiction under 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS INVOLVED

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

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except

in cases arising in the land or naval forces, or

in the militia, when in actual service in time of

war or public danger; nor shall any person be

subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without

just compensation.

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

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

A. Factual Background

Petitioner, Joseph R. Mays, was an African-American inmate housed at the Federal Correctional Institution in Butner, North Carolina (“FCI-Butner”),

when he experienced “racial discrimination, disparate

treatment, harassment, abuse of authority, and defamation of character.”

Pet.App.108a (citing

Pet.App.22a-77a at ¶¶ 3, 6, 22). Petitioner suffered

from racial discrimination because Respondents gave

“preferential treatment” to white inmates. Id. (citing

Am. Compl. Ex. 1 (DE 45-2) at 5). Specifically, certain

Respondents withheld information and tools from Petitioner that were necessary to complete his work—

instead giving such information and tools to white inmates. Pet.App.121a (citing Pet.App.73a ¶ 201);

Pet.App.47a-48a at ¶¶ 50-60. Then, multiple FCIButner employees retaliated against Petitioner for filing grievances related to this discrimination by accusing him of “malingering” and using abusive and demeaning language. Pet.App.108a (citing Am. Compl.

Ex. 1 (DE 45-2) at 4). Such treatment ultimately resulted in Petitioner’s placement in administrative detention without cause, wrongful termination from his

employment at the UNICOR factory, and improper

transfer to another correctional institution without

receiving notice of the alleged misconduct or an opportunity to rebut the allegations. Pet.App.110a-113a

(citing Pet.App.22a-77a at ¶¶ 76, 80-82, 85, 89-96, 108,

126; Pet.App.86a-87a). After exhausting the available

administrative remedies, Petitioner filed a lawsuit in

the Eastern District of North Carolina seeking damages for the Constitutional violations he experienced

at FCI-Butner. See Pet.App.88a-104a.

In June 2016, Respondent Hoskins, Petitioner’s

manager at the UNICOR optics factory, gave preferential treatment to white inmates over Petitioner. See

Pet.App.108a (citing Pet.App.22a-77a at ¶¶ 6, 22; Am.

Compl. Ex. 1 (DE 45-2) at 4-5). Petitioner filed administrative remedy requests with the Federal Bureau of

Prisons (“FBOP”) regional director’s office in protest.

Id. As a result, Respondent Hoskins and Respondent

Dickerson, a UNICOR optics factory supervisor, met

with Petitioner to discuss his concerns and “reassured”

him that he would not be transferred to another correctional facility. Pet.App.45a at ¶ 34. Further, in August 2016, Hoskins and Respondent Ma’at, the associate warden at FCI-Butner, met with Petitioner in the

dining hall to address Petitioner’s concerns regarding

his UNICOR position. Pet.App.46a-47a at ¶¶ 43-50.

When Petitioner informally addressed his concern

that Hoskins withheld information from him that was

necessary to complete his work as a lead mechanic

based on Petitioner’s race, Hoskins dismissed his concerns by responding that he provided the information

to another inmate who had “IT experience.”

Pet.App.47a-48a at ¶¶ 53-60. Petitioner alleged

Hoskins allowed Petitioner’s white inmate coworkers

to withhold information and “refuse[d] to share information … with the Plaintiff.” Pet.App.73a-74a at ¶¶

202-04. Hoskins never acknowledged that Petitioner

was the “lead mechanic, had been trained on the relevant machines by an outside contractor, and had prior

experience working in an information technology position.” Pet.App.110a (citing Pet.App.47a-48a at ¶¶

54-60). Instead, Hoskins falsely accused Petitioner of

“starting to disrupt the orderly running of the facility.”

Pet.App.49a at ¶ 64.

Although Petitioner responded to these allegations

by suggesting possible ways to resolve the dispute, Respondent Ma’at threatened termination, saying “or we

can fire you! If you [are not] trained, we can fire you

and get someone else.” Id. at ¶¶ 66-67. Further, Ma’at

threatened Petitioner’s job security by stating that Petitioner “[does not have a] union[.]” Pet.App.50a at ¶

69. When Petitioner asked if his co-worker that withheld information from him would be held accountable,

Respondent Hoskins refused to answer directly. Id. at

¶¶ 70-71. However, Ma’at stated that he could fire

both employees, and he could “get someone to replace

both of [them].” Id. at ¶ 73. Later that day, Petitioner

was fired from his UNICOR position. Pet.App.110a

(citing Pet.App.22a-77a at ¶¶ 74, 197-204). The white

co-worker that had withheld information from him

was not fired. Id. The stated “reasons” for Petitioner’s

termination were false allegations that Petitioner had

made threatening comments to Respondents Ma’at

and Hoskins and threatened to cause a UNICOR work

stoppage. See Pet.App.111a-112a (citing Pet.App.86a87a).

Petitioner alleges that the Respondents fired him

solely because he was an African American who filed

grievances alleging discrimination and not due to any

poor work performance. Pet.App.72a at ¶ 197. Petitioner further alleges that Respondents fabricated

false charges against him for these grievances, and he

was subsequently subjected to disparate treatment,

which included being fired, detained, and transferred.

Pet.App.72a-73a at ¶¶ 198-99. Petitioner also alleges

that Respondents gave his white co-worker preferential treatment by not firing him when Petitioner was

fired for similar conduct. Pet.App.73a at ¶ 200.

Moreover, in addition to firing Petitioner based on

the false allegations of “making threatening comments” and “threatening to cause a work stoppage,”

Respondents Christopher and Hendry, FCI-Butner

corrections officers, drafted an administrative detention order that transferred Petitioner to the special

housing unit. Pet.App.110a-111a (citing Pet.App.22a77a at ¶¶ 76, 89). Although the “administrative detention order . . . did not specify the reason for plaintiff ’s placement in administrative detention,” Respondent Glass, a special investigations supervisor

assigned to FCI-Butner, later told Petitioner that

“someone ‘got in their feelings’ because you filed a

grievance.” Pet.App.111a; Pet.App.52a at ¶ 85. However, Respondents Glass, Christopher, and Wilkins

never explained to Mays the precise or official reason

he was placed in administrative detention.

Pet.App.53a at ¶¶ 90-91. In late August 2016, Respondent Glass informed Petitioner “off the record”

that Respondents Ma’at and Hoskins wanted Petitioner to be transferred to a different institution,

while also informing Petitioner that the investigation

about his meeting with Ma’at and Hoskins was private and could not be disclosed. Pet.App.112a (citing

Pet.App.54a at ¶¶ 95-96). On September 2, 2016,

when Petitioner asked Respondent Slaydon, a special

investigations supervisor, why he was in administrative detention, Slaydon simply responded, “it’s complicated.” Pet.App.112a (citing Pet.App.22a-77a at ¶¶ 15,

107-108). Thus, despite asking at least five FCI-Butner staff members why he was in administrative detention, Petitioner was never offered a formal or adequate explanation.

While in administrative detention, Petitioner developed severe health problems. On September 16, 2016,

Petitioner became dizzy and lightheaded, ultimately

fainting in his cell. Pet.App.58a at ¶ 128. As a result

of his administrative detention, Petitioner also developed gastrointestinal problems that significantly affected his quality of life and ability to function. See

Pet.App.61a at ¶ 157. Petitioner did not suffer gastrointestinal problems or lightheadedness prior to his administrative detention, which indicates the mental

and physical stress the Prison Employees put him

through by subjecting him to administrative detention.

Id. at ¶ 159.

Further, administrative detention had both a financial and an emotional toll on Petitioner. Losing his

UNICOR job cost Petitioner $200 per month, for a total loss of $4,400. See Pet.App.63a-66a at ¶¶ 172, 180.

Even worse, while Petitioner was unnecessarily

placed in administrative detention for unknown reasons, Petitioner was denied access to speak to his father for approximately two months prior to his father’s death. Pet.App.61a at ¶¶ 153-156. Petitioner

was transferred to FCI-Gilmer on October 21, 2016,

and arrived on November 1, 2016. Id. at ¶¶ 152, 161.

While in transit, Petitioner’s father died. Id. at ¶ 153.

B. Procedural History

On July 23, 2018, Petitioner filed a complaint in the

United States District Court for the Eastern District

of North Carolina alleging violations of his First and

Fifth Amendment rights. After several amended complaints, the Respondents timely filed their answer in

the form of a motion to dismiss Petitioner’s claims,

which Petitioner opposed. On September 30, 2020,

the district court granted Respondents’ motion to dismiss, finding that Petitioner’s equal protection and

due process claims present a new context and are

therefore not cognizable under Bivens.

On appeal, the Fourth Circuit affirmed the dismissal. Focusing on a broad interpretation of what a

“meaningful difference” is under Abbasi and dismissing Petitioner’s arguments regarding the Third Circuit’s decision in Bistrian v. Levi, 912 F.3d 79 (3d Cir.

2018), the Fourth Circuit agreed with the district

court that Petitioner’s claims presented a new context

under Bivens and that special factors counseled hesitation against extending Bivens to Petitioner’s claims.

The Fourth Circuit made a sweeping interpretation of

this Court’s precedent, noting that “‘the Supreme

Court [has] all but closed the door on Bivens remedies’

that do not fit within the precise confines of its prior

Bivens cases. Dyer v. Smith, 56 F.4th 271, 277 (4th Cir.

2022). Such is the case here.” Pet.App.3a.

First, the Fourth Circuit found that Petitioner’s

Fifth Amendment claims presented a new Bivens context. Pet.App.8a-9a. In reaching this decision, the

court noted a new context under Bivens “is a low bar

because even ‘quite minor’ differences between a proposed claim and the claims in the three existing

Bivens cases can amount to a new context.”

Pet.App.9a (citing Tun-Cos v. Perrotte, 922 F.3d 514,

523 (4th Cir. 2019)). The Fourth Circuit reasoned that

Petitioner’s claims presented a new context under

Bivens because (1) “[t]he Supreme Court has never authorized a Bivens claim for procedural due process or

race-based discrimination[;]” (2) prison officials are a

new category of defendants (even though the defendants in Carlson were prison officials); and (3) the

Third Circuit’s ruling in Bistrian, which allowed a

Bivens claim for Fifth Amendment violations brought

by an inmate, could not be reconciled with this Court’s

recent precedent in Egbert. Pet.App.9a-10a (citations

omitted). The Fourth Circuit supported its conclusion

that Petitioner’s claims present a new Bivens context

by noting that Egbert “rejected a virtually identical

claim” to the claim in Bivens (despite Egbert’s very different national security implications), suggesting that

all claims that are not actually identical to those in

Bivens, Davis, or Carlson should be considered new

contexts. Pet.App.11a. Ultimately, the Fourth Circuit

concluded that Petitioner’s claims had “the potential

to implicate separation-of-powers considerations,”

and therefore presented a new Bivens context.

Pet.App.12a (citation omitted).

After finding that Petitioner’s claims presented a

new context, the Fourth Circuit determined that “special factors” counseled hesitation against extending

Bivens to Petitioner’s claims. Ignoring that Carlson

involved prison officials, it found that the category of

defendants was new. Pet.App.13a. It also found that

the category of conduct—racial discrimination—was

new. Id. It reasoned that Petitioner’s claims “‘intersect with the statutory scheme delegating authority

over prison designation, transfer, and housing decisions to the BOP,’ as well as those governing prison

discipline and inmate employment.” Pet.App.13a-14a

(citations omitted). And it found that the BOP’s Administrative Remedy Program constituted an available alternative remedial structure. Pet.App.14a-15a.

It noted that Congress has legislated in the area of

prisoner litigation via the Prison Litigation Reform

Act, which does not create an individual-capacity

damages remedy for federal inmates. Pet.App.15a.

Ignoring that this case has nothing to do with national

security or unique prison-security concerns, the

Fourth Circuit also noted that if it were to “authorize

this new category of prison litigation, claims like

Mays’s would almost certainly ‘impose liability on

prison officials on a systemic level’ and amount to a

‘substantial burden’ on government officials.” Id. (citation omitted).

In sum, the decision below is based on the apparent

belief that Supreme Court precedent has limited

Bivens actions to the exact confines of the facts of

Bivens, Davis, and Carlson.

On June 20, 2023, Petitioner filed a petition for

panel rehearing and en banc rehearing. On August 4,

2023, the Fourth Circuit denied that petition

Pet.App.20a-21a. On October 25, 2023, Chief Justice

Roberts extended the time to file this petition until

December 29, 2023. No. 23A367 (U.S.).

REASONS FOR GRANTING THE PETITION

The Lower Court Decisions Conflict With

This Court’s Precedent Allowing Bivens

Claims For Gender Discrimination in the

Employment Context and by Prison-Inmate

Plaintiffs.

A. The Original Bivens Precedent Provided

Claims for Gender Discrimination and

for Prison-Inmate Plaintiffs.

To begin with, the decisions below conflict with this

Court’s precedent allowing Bivens claims based on

gender discrimination in the employment context.

The first key precedent with which the decisions below conflict is Davis v. Passman, 442 U.S. 228 (1979).

In Davis, a plaintiff who was fired on the basis of her

gender presented a cognizable claim for Fifth Amend-

ment violations under Bivens. Id. at 228. Significantly, this Court relied on a racial discrimination

case in holding that the plaintiff ’s Fifth Amendment

gender discrimination claims were cognizable under

Bivens. See id. at 242-43 (citing Bolling v. Sharpe, 347

U.S. 497 (1954) (“The plaintiffs . . . claimed that they

had been refused admission into certain public

schools . . . solely on account of their race. They rested

their suit directly on the Fifth Amendment. . . . Plaintiffs were clearly the appropriate parties to bring such

a suit, and this Court held that equitable relief should

be made available.”)). In fact, the Supreme Court has

repeatedly held that “the Due Process Clause of the

Fifth Amendment forbids the Federal Government to

deny equal protection of the laws.” Davis, 442 U.S. at

234 (internal quotation marks omitted). The Equal

Protection Clause of the Fifth Amendment requires

that “all persons similarly situated should be treated

alike.” City of Cleburne, Tex. v. Cleburne Living Ctr.,

473 U.S. 432, 439 (1985). A plaintiff stating an equal

protection claim must show that their unequal treatment was on the basis of discrimination, after which

“the court proceeds to determine whether the disparity in treatment can be justified under the requisite

level of scrutiny.” Veney v. Wyche, 293 F.3d 726, 73031 (4th Cir. 2002) (citation omitted); Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Racial classifications are entitled to review under strict scrutiny,

which is a higher level of scrutiny than gender classifications receive. Compare Adarand Constructors, Inc.

v. Pena, 515 U.S. 200, 201 (1995) (racial classifications

receive strict scrutiny) with Craig v. Boren, 429 U.S.

190 (1976) (gender classifications receive intermediate scrutiny).

Moreover, inmates “have the constitutional right to

be free from racial discrimination.” Bentley v. Beck,

625 F.2d 70, 70-71 (5th Cir. 1980) (holding that a prisoner alleging that he was denied a prison job based on

his race properly stated an equal protection claim).

And this Court has held that “invidious racial discrimination is as intolerable within a prison as outside

[a prison], except as may be essential to ‘prison security and discipline.’” Hudson v. Palmer, 468 U.S. 517,

523 (1984) (citing Lee v. Washington, 390 U.S. 333, 334

(1968)) (emphasis added).

The second key precedent with which the decisions

below conflict is Carlson v. Green, 446 U.S. 14 (1980).

In Carlson, the Supreme Court allowed Bivens claims

against prison officials by a federal inmate prisoner

alleging violations of his Eighth Amendment rights to

proceed. Id. at 20. Relying on Davis, Carlson noted:

“Petitioners [i.e. prison officials] do not enjoy such independent status in our constitutional scheme as to

suggest that judicially created remedies against them

might be inappropriate.” Id. at 19.

B. The Recent Decisions in Abbasi and Egbert Limit Bivens in the National Security Context.

Recently, however, the Court has limited the circumstances in which Bivens remedies are available

where there are substantial national security concerns, such as in Egbert v. Boule, 596 U.S. 482 (2022)

and in Ziglar v. Abbasi, 582 U.S. 120 (2017).

In Abbasi, the Court declined to extend a Bivens

remedy to Fourth Amendment claims by prisoners

challenging their confinement conditions following

the September 11 terrorist attacks. 582 U.S. at 120.

The Court reasoned that “a case can present a new

context for Bivens purposes if it implicates a different

constitutional right; if judicial precedents provide a

less meaningful guide for official conduct; or if there

are potential special factors that were not considered

in previous Bivens cases.” Id. at 148. However, it

noted that a case must be different from previous

Bivens cases decided by the Supreme Court “in a

meaningful way” for the context to be new. Id. at 139

(emphasis added).

In Egbert, the Court declined to extend a Bivens

remedy to Fourth Amendment claims by a plaintiff

who regularly provided transportation and lodging to

illegal border crossers because “a Bivens cause of action may not lie where, as here, national security is at

issue.” 596 U.S. at 494. The Court in Egbert added

an additional requirement for courts to consider when

determining whether a claim is cognizable under

Bivens—whether “‘Congress is in a better position to

decide whether or not the public interest would be

served’ by imposing a damages action.” Id. at 499

(quoting Bush v. Lucas, 462 U.S. 367, 390 (1983)).

C. The Fourth Circuit’s Decision Conflicts

with Both this Court’s Original Precedent and Recent Decisions.

Here, Petitioner’s case presents a run-of-the-mill

race discrimination claim in the employment context,

where the employee happens to be an inmate, but no

national security or border security concerns are even

questionably at issue. Therefore, it falls squarely

within Davis and Carlson. Of the recognized Bivens

contexts, Davis is the most similar to the current case.

The Fourth Circuit even acknowledged that Petitioner’s equal protection claims “mirror” the claim in

Davis. Pet.App.12a. Petitioner’s context is not meaningfully different from the context in Davis—at their

core, both involve discrimination against someone in

a protected class. In fact, the primary difference is

that Petitioner was discriminated against on the basis

of his race, rather than his gender, and it is a fundamental tenet of federal law that discrimination on the

basis of race receives a stricter level of scrutiny than

discrimination on the basis of gender. See supra at 13.

The Fourth Circuit did not address this point in its

decision, but it is illogical to find that an employment

discrimination claim based on race presents a new,

impermissible Bivens context when employment discrimination claims based on gender are permissible.

Moreover, because this Court in Davis relied on Bolling v. Sharpe, a race discrimination case, in holding

that the plaintiff alleging gender discrimination can

bring a Fifth Amendment equal protection claim under Bivens, it cannot be that this Court intended to

foreclose a remedy under Bivens for plaintiffs alleging

race discrimination and bringing Fifth Amendment

equal protection claims, as Petitioner does.

That Petitioner was discriminated against while he

was employed as an inmate in prison does not change

this analysis. Like in Carlson, in which the Court established that prisoners may bring Bivens actions

against prison officials, here, Petitioner should similarly be allowed to bring a Bivens action against Respondents. And although Davis did not involve employment in the prison context, nothing about the

facts of this case suggests that the discrimination that

Petitioner faced was essential or even tangentially

relevant to prison security or discipline, as would be

required by Hudson for the discrimination to be tolerated. Petitioner worked a job while in prison that was

equivalent to jobs outside of prison; he was mistreated

and eventually fired because of racial animus, which

caused him harm. There is nothing unique about

these allegations to the prison context.

Thus, because both Petitioner’s claims and the

claim in Davis arise under the Fifth Amendment

equal protection doctrine, and federal law imposes a

stricter level of scrutiny on race than gender, and because Carlson has established that prisoners may

bring Bivens actions against prison officials, there are

no “meaningful” differences between the contexts of

Petitioner’s claims and those the Court has approved

of in Davis and Carlson. As such, Petitioner’s claims

do not present a new Bivens context.

Finally, Petitioner’s claims are critically different

from the claims at issue in Egbert and Abbasi, where

this Court has cautioned against extending Bivens

remedies to new contexts, because Petitioner’s claims

are run-of-the-mill racial discrimination claims that

mirror those in Davis and that do not implicate national security. Unlike in Egbert and Abbasi, where

the Court found a new Bivens context for Fourth

Amendment claims raising substantial national security concerns, here, Petitioner’s Fifth Amendment

claims have been established as an appropriate context under Bivens in Davis, and Petitioner’s status as

an inmate has absolutely no national security implications.

Because Petitioner’s claims are garden variety employment claims alleging discrimination on the basis

of race, which receive a higher level of scrutiny than

claims based on gender, and which in no way implicate

national security concerns, the lower courts’ decisions

conflict with this Court’s precedent.

II. The Fourth Circuit’s Decision Deepens A

Circuit Split.

In the wake of Abbasi and Egbert, it is uncertain to

what extent the Court’s prior precedent in Bivens, Davis, and Carlson retain vitality. Neither Abbasi nor

Egbert explicitly overturns the Court’s prior precedent;

instead, both cases offer guidance regarding Bivens

claims that involve national security issues. See supra at 14. The Fourth Circuit’s decision deepens a

split with the Third and Tenth circuits as to whether

the original Bivens decisions retain vitality such that

an inmate’s claims alleging Fifth Amendment violations due to racial discrimination are cognizable under Bivens. The Fifth Circuit has previously found

that racial discrimination claims are valid under

Bivens, but district courts in the Fifth Circuit have interpreted Abbasi and Egbert to mean that the law has

changed, and such claims are no longer cognizable under Bivens. The Fourth Circuit seems to have taken

the position through its decision below that Abbasi

and Egbert do fundamentally change the law regarding Bivens claims, such that the only claims that are

cognizable under Bivens are those whose facts are

identical to either Bivens, Davis, or Carlson.

In Bistrian v. Levi, 912 F.3d 79, 84 (3d Cir.

2018), an inmate, Bistrian, brought a Bivens claim alleging violations of his Fifth Amendment rights after

certain prison officials failed to protect Bistrian from

a violent attack by other inmates in the prison yard,

despite knowing of threats made against him by those

same inmates. The Third Circuit revealed its belief

that Abbasi does not change the fundamental Bivens

law, holding that “an inmate’s claim that prison officials violated his Fifth Amendment rights by failing to

protect him against a known risk of substantial harm

does not present a new Bivens context.” Bistrian, 912

F.3d at 90; see also Farmer v. Brennan, 511 U.S. 825,

832-49 (1994). Bistrian’s claims involved the Fifth

Amendment, but the court used Farmer, a case involving Eighth Amendment claims, to confirm that the

plaintiff ’s claim did not present a new Bivens context.

912 F.3d at 90-91 (“[A]lthough Bistrian’s claim derives

from a different Amendment, it is not ‘different in a

meaningful way’ from the claim at issue in Farmer.

The failure-to-protect claim here thus does not call for

any extension of Bivens.”) (quoting Abbasi, 582 U.S.

at 139) (internal citations omitted). The Fourth Circuit directly disagreed with the Third Circuit in Bistrian (Pet.App.10a-11a); however, Bistrian is still good

law in the Third Circuit. See Shorter v. United States,

12 F.4th 366, 373 (3d Cir. 2021) (“Because Bistrian's

claim was not meaningfully different from the claim

at issue in Farmer, we concluded the latter case ‘practically dictate[d] our ruling’ in the former. [citation] So

too here.”) Thus, the Fourth Circuit’s decision to disregard Bistrian deepens a circuit split regarding how

to treat Bivens claims following this Court’s recent decisions. 1

1 Nor is the Third Circuit’s recent decision in Xi v. Haugen,

68 F.4th 824 (3d Cir. 2023), to the contrary. There, a plaintiff

alleged Fifth Amendment violations because he was “investi-

Moreover, the Tenth Circuit has not altered its

interpretation of Bivens claims in light of Abbasi and

Egbert, either. In Williams v. Meese, 926 F.2d 994, 996

(10th Cir. 1991), an inmate alleged violations of his

Fifth Amendment rights after “defendants denied him

certain prison job assignments, for which he was qualified, solely on the basis of his age, race, or handicap.”

The Tenth Circuit found that the inmate’s allegations

of such discrimination by prison officials are “sufficient [] to state a Bivens claim for deprivation of the

right to equal protection secured by the fifth amendment.” Id. at 998.

The court continued that

“[a]lthough plaintiff has no right to a job in the prison

gated by a ‘Special Agent employed by the FBI working on Chinese counterintelligence’ based ‘on the fact that ... Xi is racially

and ethnically Chinese.’” Id. at 835. The Third Circuit determined that these claims presented a new Bivens context because

the plaintiff “does not allege that Haugen harbored personal animus against the Chinese. Rather, . . . he attributes [the discrimination] solely to the FBI's counterintelligence policy and the

mission of its Chinese counterintelligence unit.” Id. Thus, a new

context existed because the plaintiff did not challenge an individual act of racial discrimination, but a broad policy of the FBI regarding Chinese civilians. See id. (“The conduct that Xi challenges is also of a far broader scope than the discrete action in

Davis. The plaintiff there challenged a specific employment decision . . . Xi, in contrast, contests ‘Haugen's investigation and

initiation of prosecution ... based on impermissible racial and

ethnic factors’ that Xi believes informed the FBI's investigative

priorities and charging recommendation.”). Indeed, the very

unique policy challenge in Xi is akin to the impermissible policy

challenge in Abbasi. Critically, Xi does not cut back on Bistrian;

it simply shows that the Third Circuit can apply this Court’s recent precedent in multiple ways. And Xi does not undercut Petitioner’s claims, as Petitioner alleges very specific acts of discrimination by individual defendants and does not challenge any federal agency’s policies or broad practices.

or to any particular job assignment, see Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir.1986), prison officials cannot discriminate against him on the basis of

his age, race, or handicap, in choosing whether to assign him a job or in choosing what job to assign him,

see Bentley v. Beck, 625 F.2d 70, 70-71 (5th Cir.1980).”

Id. While this case was decided by the Tenth Circuit

before Egbert and Abbasi cautioned against extending

Bivens, it is still good law in the Tenth Circuit, as the

Tenth Circuit has not revisited its precedent regarding Fifth Amendment Bivens claims based on racial

discrimination since Abbasi and Egbert were decided. 2

The Fifth Circuit previously found that Bivens

claims based on racial discrimination are valid, but

district courts in the Fifth Circuit have interpreted

Abbasi and Egbert to mean that the law has changed,

and such claims are no longer cognizable. In Moore v.

U.S. Dep’t of Agric. On Behalf of Farmers Home Admin., 993 F.2d 1222, 1222 (5th Cir. 1993), plaintiff-appellant farmers were denied an opportunity to participate in sale of inventory farmland solely because they

were white. The Fifth Circuit ruled that the allegations of “overt racial discrimination” by plaintiffs-appellants “pose[d] more than a possibility of recovery

2 That said, the Tenth Circuit has found in the context of

Eighth Amendment claims that Egbert has fundamentally

changed Bivens law, stating that expanding Bivens to new contexts “is an action that is impermissible in virtually all circumstances.” Silva v. United States, 45 F.4th 1134, 1140 (10th Cir.

2022). Silva involved an Eighth Amendment excessive force

claim—it does not implicate racial discrimination in any way. Id.

at 1136. Given the very different claims in Silva, it does not indicate whether the Tenth Circuit would now consider Fifth

Amendment racial discrimination claims to be a new context, but

it does suggest a reluctance to allow Bivens claims to proceed.

under a Bivens-type action founded in the equal protection component of the Fifth Amendment.” Id. at

1222-23. But several district courts within the Fifth

Circuit have interpreted this Court’s recent decision

in Abbasi to mean that racial discrimination claims

present a new context under Bivens and special factors counsel against extending Bivens to such claims.

See Webb v. McQuade, 2022 WL 136464, at *7 (W.D.

Tex. Jan. 14, 2022); Belfrey-Farley v. Palmer, No. 3:19cv-1305-S-BT, 2021 WL 2814885, at *6-7 (N.D. Tex.

May 7, 2021), report and recommendation adopted, No.

3:19-CV-1305-S-BT, 2021 WL 2808826 (N.D. Tex. July

6, 2021) (finding that plaintiff ’s claims that a defendant invaded her home at least in part due to her “race,

ethnicity and/or perceived national origin” presented

a new Bivens context). In Webb, a prisoner-plaintiff

alleged Fifth Amendment violations of his right to

equal protection under Bivens after a prison official

referred to him using a racial slur. 2022 WL 136464,

at *7. The court stated that although “Fifth Circuit

case law regarding racial discrimination claims under

Bivens is not entirely clear[,]” “[a]dopting the Supreme Court's reasoning in Abbasi, the Court finds

that Webb's racial discrimination claims are meaningfully different from established Bivens claims, and

therefore, present a new Bivens context.” Id. The

court also cited Abbasi to state that the special factors

“show that whether a damages action should be allowed is a decision for the Congress to make, not the

courts[,]” and dismissed the claims as invalid under

Bivens. Id. at *7-8.

The Fourth Circuit’s decision below reflects an

interpretation that Abbasi and Egbert have fundamentally changed Bivens law, as the Fourth Circuit

previously had held that an inmate’s equal protection

claims based on racial discrimination allegedly committed by federal correctional officers were cognizable

under Bivens and 42 U.S.C. § 1983. See Roudabush v.

Milano, 714 F. App'x 208, 210-11 (4th Cir. 2017). In

Roudabush, the Fourth Circuit remanded an inmate’s

equal protection claims against federal correctional officers for further proceedings under Bivens and 42

U.S.C. § 1983. Id. Roudabush’s complaint alleged

“widespread racial discrimination at the ADC [correctional center] against white and Hispanic inmates and

in favor of black inmates.” Id. at 209. While

Roudabush presents a different procedural posture

than the one here and the Fourth Circuit did not conduct a detailed Bivens analysis of the plaintiff ’s claims,

it remains that the Fourth Circuit previously allowed

a claim nearly identical to Petitioner’s to proceed under Bivens—an equal protection claim against a federal correctional officer for discriminatory treatment

on the basis of race.

The Fourth Circuit’s contrary decision below

demonstrates a belief that Abbasi and Egbert changed

the law as to Bivens remedies. Indeed, quoting Egbert,

the Fourth Circuit stated that the “Court has made

clear that expanding the Bivens remedy to a new context is an ‘extraordinary act,’ that will be unavailable

‘in most every case.’” Pet.App.7a (quoting Egbert, 596

U.S. at 492, 497 n.3) (citations omitted). The Fourth

Circuit also reasoned that this “Court’s understanding

of a ‘new context’ is ‘broad,’ which means that the

scope of the existing Bivens actions must be narrowly

construed.” Pet.App.8a (quoting Tate v. Harmon, 54

F.4th 839, 844 (4th Cir. 2022)). The Fourth Circuit in

Tate relied on Hernandez v. Mesa, 589 U.S. ----, 140 S.

Ct. 735, 743 (2020) for the understanding of a “new

context” as “broad”: Hernandez, in turn, relied on Abbasi in coming to that conclusion. Thus, it is apparent

that the Fourth Circuit has interpreted this Court’s

recent precedent as broadly limiting its original precedent of Bivens, Davis, and Carlson essentially to only

their precise facts.

Accordingly, the decision below deepens the conflict

among the Third, Tenth, and Fifth Circuits, and departs from its own prior precedent. There is plainly a

significant question among the circuits as to how to

treat Bivens claims following of Abbasi and Egbert.

Moreover, beyond Bivens’ application to racial-discrimination claims, there is confusion among

the lower courts regarding when a claim presents a

“new context.” Compare Jacobs v. Alam, 915 F.3d

1028, 1038 (6th Cir. 2019) (“Ziglar and Hernandez are

not the silver bullets defendants claim them to be—

plaintiff ’s claims are run-of-the-mill challenges to

‘standard law enforcement operations’ that fall well

within Bivens itself.”) and Snowden v. Henning, 72

F.4th 237, 244 (7th Cir. 2023) (finding no new context

when the agent acted under the same legal mandate

as in Bivens [federal drug law enforcement], the agent

was the same line-level federal narcotics officer, and

plaintiffs sought damages for the same violation of

Fourth amendment rights [unreasonable force in arrest].) and Lanuza v. Love, 899 F.3d 1019, 1030 (9th

Cir. 2018) (finding a new Bivens context but that special factors do not counsel against expanding Bivens

to a “run-of-the-mill immigration proceeding” because

“expanding Bivens to this context does not threaten

the political branches’ supervision of national security

and foreign policy.”) with Vega v. United States, 881

F.3d 1146, 1153 (9th Cir. 2018) (“But because neither

the Supreme Court nor we have expanded Bivens in

the context of a prisoner's First Amendment access to

court or Fifth Amendment procedural due process

claims arising out of a prison disciplinary process, the

circumstances of Vega's case against private defendants plainly present a ‘new context’ under Abbasi.”)

and Cain v. Rinehart, No. 22-1893, 2023 WL 6439438,

at *3 (6th Cir. July 25, 2023) (finding a new context

under Bivens where law enforcement entered into a

private residence and assaulted the plaintiff because

it was “meaningfully” different from Bivens—the defendants here were attempting to execute an arrest

warrant of a third party who they believed was there,

while the officers in Bivens had no such warrant).

Granting certiorari is necessary to resolve this split

among the circuits regarding whether the prior case

law of Bivens, Davis, and Carlson retain vitality, or

whether Abbasi and Egbert have obliterated that

prior law such that the only cognizable Bivens claims

are those that are essentially factually identical to the

prior cases. And granting certiorari is necessary to

answer how courts should treat racial discrimination

claims under Bivens.

III. The Question Presented Is Exceptionally Important And Recurring.

This case is exceptionally important with respect to

how the law on Bivens has changed following Abbasi

and Egbert, and specifically whether racial discrimination claims are cognizable under Bivens.

First, the question presented is important because

a core principle of the American legal system is that

people should be free from discrimination on the basis

of their race. The Fourteenth Amendment enshrines

this very principle: “No State shall make or enforce

any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.”

See also the Civil Rights Act of 1964 (outlawing discrimination on the basis of race, color, religion, sex or

national origin.).

Indeed, this Court emphasized in Davis, “[t]he

equal protection component of the Due Process Clause

thus confers on petitioner a federal constitutional

right to be free from gender discrimination[.]” Davis,

442 U.S. at 235. The court relied on Bolling v. Sharpe,

347 U.S. 497 (1954), which did not address gender discrimination, but rather was a Fifth Amendment racial

discrimination case: “[l]ike the plaintiffs in Bolling v.

Sharpe, supra, petitioner rests her claim directly on

the Due Process Clause of the Fifth Amendment. She

claims that her rights under the Amendment have

been violated, and that she has no effective means

other than the judiciary to vindicate these rights. We

conclude, therefore, that she is an appropriate party

to invoke the general federal-question jurisdiction of

the District Court to seek relief. She has a cause of

action under the Fifth Amendment.” 442 U.S. at 24344. The Fourth Circuit’s decision below turns this crucial principle on its head, but this Petition presents

this Court with the opportunity to right that wrong.

See also Davis, 442 U.S. at 242 (“‘The very essence of

civil liberty,’ wrote Mr. Chief Justice Marshall in Marbury v. Madison, 5 U.S. 137, 163 [] (1803), ‘certainly

consists in the right of every individual to claim the

protection of the laws, whenever he receives an injury.

One of the first duties of government is to afford that

protection.’”).

Second, this issue is also recurring, as demonstrated by the frequency with which petitions on this

issue have been granted and decided by this Court

within the last twenty-five years alone. See, e.g., Corr.

Servs. Corp. v. Malesko, 534 U.S. 61 (2001); Wilkie v.

Robbins, 551 U.S. 537 (2007); Minneci v. Pollard, 565

U.S. 118 (2012); Ziglar v. Abbasi, 582 U.S. 120 (2017);

Hernandez v. Mesa, 589 U.S. ----, 140 S. Ct. 735 (2020);

Egbert v. Boule, 596 U.S. 482 (2022). And the question

of how to treat Bivens claims has continuously presented itself before the various circuit courts: as of filing this petition, sixty-one circuit court decisions have

discussed Abbasi at length since it was decided in

2017 (332 circuit court decisions have cited it), and

twenty-four circuit court decisions have discussed Egbert at length since it was decided in 2022 (80 circuit

court decisions have cited it). Over 700 district court

decisions have discussed Abbasi at length, and nearly

200 district court decisions have discussed Egbert at

length.

The question whether Bivens actions may still be

maintained following Abbasi and Egbert is therefore

important and recurring.