Amicus Curiae Brief — Roy Sargeant, Petitioner v. Aracelie Barfield

Supreme Court briefSep 19, 2024

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No. 24-182

IN THE

Supreme Court of the United States

ROY SARGEANT,

Petitioner,

ARACELIE BARFIELD,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE CATO INSTITUTE AND THE LAW

ENFORCEMENT ACTION PARTNERSHIP

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Bradley Hamburger

bhamburger@gibsondunn.com

Counsel of Record

Samuel Eckman

Mudit Buch

Yan Zhao

Sophia Amir

Gibson, Dunn & Crutcher LLP

333 South Grand Avenue

Los Angeles, CA 90071

Telephone: 213.229.7000

Facsimile:

213.229.7520

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY

OF ARGUMENT .........................................................2

ARGUMENT ...............................................................4

I. Bivens Is An Essential And Efficient Tool For

Vindicating Constitutional Rights. .......................4

II. Applying Bivens To Eighth Amendment

Failure-To-Protect Claims Would Not Unduly

Intrude On The Federal Prison System. .............11

CONCLUSION ..........................................................15

TABLE OF AUTHORITIES

Page(s)

Cases

Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics,

403 U.S. 388 (1971) ................................................ 2

Carlson v. Green,

446 U.S. 14 (1980) ............................................ 4, 14

City of Riverside v. Rivera,

477 U.S. 561 (1986) ................................................ 6

Egbert v. Boule,

596 U.S. 482 (2022) ...................................... 3, 4, 12

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .............................................. 14

Hernandez v. Mesa,

589 U.S. 93 (2020) .................................................. 3

Ziglar v. Abbasi,

582 U.S. 120 (2017) ................................................ 3

Statutes

42 U.S.C. § 1983 .................................................... 8, 14

42 U.S.C. § 1997e ...................................................... 12

Other Authorities

Alexander A. Reinert, Measuring the Success

of Bivens Litigation and Its Consequences

for the Individual Liability Model,

62 Stan. L. Rev. 809 (2010)................................ 5, 9

iii

Amelia G. Collins, The Bivens “Special

Factors” and Qualified Immunity:

Duplicative Barriers to the Vindication of

Constitutional Rights,

55 U. Rich. L. Rev. 1 (2021) ................................. 14

Bryan Lammon, Making Wilkie Worse:

Qualified-Immunity Appeals and the

Bivens Question after Ziglar and

Hernandez, 2020 U. Chi. L. Rev. Online 1 ......... 15

Catherine Fisk & Erwin Chemerinsky,

Civil Rights Without Remedies:

Vicarious Liability Under Title VII,

Section 1983, and Title IX,

7 Wm. & Mary Bill Rts. J. 755 (1999) ................... 7

Fed. Bureau of Prisons, Less Serious

Assaults on Inmates from July 2024,

https://tinyurl.com/4jpanp2f

(last visited Sept. 8, 2024) ................................... 10

Fed. Bureau of Prisons, Population Statistics

(last updated Sept. 12, 2024),

https://tinyurl.com/47nu8xe4............................... 10

Fed. Bureau of Prisons, Serious Assaults on

Inmates from July 2024,

https://tinyurl.com/4swpeh2h

(last visited Sept. 8, 2024) ................................... 10

James E. Pfander et al.,

The Myth of Personal Liability:

Who Pays When Bivens Claims Succeed,

72 Stan. L. Rev. 561 (2020).................................. 12

James E. Pfander,

Iqbal, Bivens, and the Role of JudgeMade Law in Constitutional Litigation,

114 Penn St. L. Rev. 1387 (2010) .......................... 9

Joanna C. Schwartz, How Governments Pay:

Lawsuits, Budgets, and Police Reform,

63 UCLA L. Rev. 1144 (2016) ............................... 7

Joanna C. Schwartz, What Police Learn from

Lawsuits, 33 Cardozo L. Rev. 841 (2012) .......... 6, 8

John C. Jeffries, Jr., The Liability Rule for

Constitutional Torts,

99 Va. L. Rev. 207 (2013) ....................................... 7

Margo Schlanger, Inmate Litigation,

116 Harv. L. Rev. 1555 (2003) ........................... 7, 8

Myriam E. Gilles, In Defense of Making

Government Pay: The Deterrent Effect of

Constitutional Tort Remedies,

35 Ga. L. Rev. 845 (2001)................................... 5, 6

Richard H. Fallon, Jr. & Daniel J. Meltzer,

New Law, Non-Retroactivity, and

Constitutional Remedies,

104 Harv. L. Rev. 1731 (1991) ............................. 12

U.S. Dep’t of Just., Off. of the Inspector Gen.,

DOJ OIG Releases Report on Issues

Surrounding Inmate Deaths in Federal

Bureau of Prisons Institutions (Feb. 15,

2024), https://tinyurl.com/bdrnh592 ............... 6, 10

Wash. Laws.’ Comm. for C.R. & Urb. Affs.,

Cruel and Unusual: An Investigation into

Prison Abuse at USP Thomson (2023),

https://tinyurl.com/2mab5xnd ....................... 10, 11

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation established in 1977 and

dedicated to advancing the principles of individual

liberty, free markets, and limited government. The

Cato Institute’s Project on Criminal Justice was

founded in 1999 and focuses on the proper role of the

criminal sanction in a free society, the scope of

substantive criminal liability, the proper and effective

role of police in their communities, the protection of

constitutional and statutory safeguards for criminal

suspects and defendants, citizen participation in the

criminal justice system, and—of particular relevance

here—accountability for law enforcement officers.

The Law Enforcement Action Partnership

(“LEAP”) is a nonprofit composed of police,

prosecutors, judges, corrections officials, and other

criminal justice professionals who seek to improve

public safety, promote alternatives to arrest and

incarceration, address the root causes of crime, and

heal police–community relations through sensible

changes to our criminal justice system.

Amici share a steadfast belief that the Eighth

Amendment’s prohibition against cruel and unusual

punishment lies at the heart of American justice, and

that the rigorous enforcement of this prohibition is

1 Amici state that this brief was not authored in whole or in

part by counsel for any party, and that no person or entity other

than amici, their members, or their counsel made a monetary

contribution intended to fund the preparation or submission of

this brief. Counsel of record for the parties received timely notice

of amici’s intent to file this brief.

imperative to preserving our system of limited

government and promoting accountability.

INTRODUCTION AND

SUMMARY OF ARGUMENT

When this Court decided Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), more than 50 years ago, it recognized

that earlier judge-made rules designed to deter the

violation of constitutional rights—namely, the

exclusionary rule—had proven woefully inadequate.

In response, the Court built upon longstanding

common-law traditions to authorize private parties

whose rights had been violated by federal officials to

sue for damages.

More than half a century of experience with Bivens

confirms that its private cause of action provides a

potentially highly effective means of enforcing

constitutional rights, exposing individual and

systemic misconduct, and incentivizing policymakers

to adopt needed reforms. And contrary to the Seventh

Circuit’s decision here, allowing federal prisoners a

monetary remedy under Bivens when a rank-and-file

prison official deliberately subjects them to the risk of

inmate-on-inmate violence will not present

“separation-of-powers concerns” by inviting courts to

“interfere with” issues such as prison “housing

policies.” Pet. App. 14a–15a. That is because the

Prison Litigation Reform Act (“PLRA”) and its

exhaustion requirement ensure that the Bureau of

Prisons (“BOP”) will have the first opportunity to

resolve any complaints raised by prisoners about their

conditions. Indeed, a number of LEAP’s members who

have worked in the prison system have emphasized

the salutary effect constitutional tort actions have in

maintaining harmonious relations between prisoners

and their custodians. The risk of undue intrusion is

especially low given the broad protection federal

officers currently enjoy under the judicially created

qualified-immunity doctrine.

These facts distinguish Eighth Amendment

failure-to-protect claims from the other contexts in

which this Court has recently declined to apply

Bivens. Each of those contexts involved foreign policy

and national security concerns, where Congress is

especially likely to be “better suited to ‘weigh the costs

and benefits’” of private damages actions. E.g., Egbert

v. Boule, 596 U.S. 482, 494, 496 (2022) (“[W]e reaffirm

that a Bivens cause of action may not lie where, as

here, national security is at issue.”); Hernandez v.

Mesa, 589 U.S. 93, 108 (2020) (“Since regulating the

conduct of agents at the border unquestionably has

national security implications, the risk of

undermining border security provides reason to

hesitate before extending Bivens into this field.”).

That is not necessarily the case in entirely domestic

settings—and especially settings such as federal

prisons, where the judiciary has extensive experience

and unique insight.

It is therefore no surprise that, even when it has

declined to apply Bivens, this Court has been quick to

reaffirm “the continued force, or even the necessity, of

Bivens.” Ziglar v. Abbasi, 582 U.S. 120, 134 (2017).

Bivens “vindicate[s] the Constitution by allowing

some redress for injuries, and it provides instruction

and guidance to federal law enforcement officers going

forward.” Id. For this reason, the Court has

unambiguously refused to “reconsider Bivens itself.”

Egbert, 596 U.S. at 502.

Bivens actions are essential where federal

inmates allege that rank-and-file prison officials have

violated their Eighth Amendment rights by

deliberately subjecting them to the risk of inmate-oninmate violence. Federal prisoners are among our

Nation’s most vulnerable populations. It is precisely

these people—who generally cannot vote, protest, or

garner attention from the media—who are most

dependent on the judicial system to vindicate their

constitutional rights. Congress recognized as much.

As this Court observed, it is “crystal clear” that

Congress intended constitutional torts to operate as

“parallel, complementary causes of action” to

statutory causes of action for federal inmates.

Carlson v. Green, 446 U.S. 14, 18–20 (1980). This

Court should therefore grant the petition for certiorari

and reverse the Seventh Circuit’s judgment.

ARGUMENT

I. BIVENS IS AN ESSENTIAL AND EFFICIENT TOOL

FOR VINDICATING CONSTITUTIONAL RIGHTS.

More than 50 years into the Bivens era, the

evidence is unequivocal: The private right of action

for constitutional violations authorized by that

decision is one of the most effective mechanisms

available for policing and preventing government

misconduct. That private right of action is especially

important for prisoners in federal custody, who do not

have meaningful access to the political system.

Empirical analyses confirm that Bivens has

provided an important pathway for citizens to obtain

redress for the violation of their constitutional rights.

A survey of five federal district courts across the

country found that 38.9 percent of counseled Bivens

actions—and 9.5 percent of pro se Bivens actions—

resulted in a victory for the plaintiffs. Alexander A.

Reinert, Measuring the Success of Bivens Litigation

and Its Consequences for the Individual Liability

Model, 62 Stan. L. Rev. 809, 839 (2010). Notably,

Bivens actions alleging prison-condition violations

had an overall success rate of 15.3 percent, id. at 836

n.138—despite the fact that the vast majority of these

actions were brought pro se, with the “difference in

success between pro se and represented plaintiffs . . .

statistically significant in most districts and within

the sample as a whole,” id. at 838.

But Bivens actions are not limited to remedying

individual violations of particular citizens’ rights. On

the contrary, one of the most important effects of

Bivens has been to achieve systemic reforms by

incentivizing government agencies to adopt policies

that minimize the risk that constitutional constraints

are violated in the first place. It has done so through

its “informational” and “fault-fixing” functions.

Myriam E. Gilles, In Defense of Making Government

Pay: The Deterrent Effect of Constitutional Tort

Remedies, 35 Ga. L. Rev. 845, 858–65 (2001).

In their informational function, Bivens actions

bring to light individual and systemic abuses that

might otherwise go unnoticed by policymakers.

“When constitutional tort victims pursue litigation,

motivated by the availability of compensatory

damages, valuable information is unearthed and

exposed.” Gilles, 35 Ga. L. Rev. at 859. This litigation

can encourage other victims of government

misconduct to come forward, exposing patterns of

abuse. And the crucible of discovery can fix attention

on problem actors and institutional deficiencies

within law-enforcement agencies. It certainly does so

more reliably than agencies’ self-reporting, which is

often infected by institutional conflicts and

misaligned incentives. See U.S. Dep’t of Just., Off. of

the Inspector Gen., DOJ OIG Releases Report on

Issues Surrounding Inmate Deaths in Federal Bureau

Prisons

Institutions

(Feb.

15,

2024),

https://tinyurl.com/bdrnh592 (“DOJ OIG Report”)

(finding that the BOP did not require in-depth

internal review of inmate homicides and “was unable

to produce documents required by its own policies in

the event of an inmate death”).

Studies confirm that constitutional tort litigation

has informed “officials of misconduct allegations that

did not surface through . . . other reporting systems,”

such as civilian complaints and internal reporting

systems. Joanna C. Schwartz, What Police Learn

from Lawsuits, 33 Cardozo L. Rev. 841, 845 (2012). In

fact, a growing number of law-enforcement agencies

have begun to “mine lawsuits for data about

misconduct allegations and the details of those

allegations.” Id. at 846–47. With the aid of this data,

law-enforcement agencies were able to “explore

personnel, training, and policy issues that may have

led to the claims” and to “craft interventions aimed at

remedying those underlying problems.” Id. at 844–45.

With respect to their “fault-fixing” function, Bivens

actions can encourage policymakers to proactively

protect constitutional rights in two ways. First, “the

damages a plaintiff recovers contribute[] significantly

to the deterrence of civil rights violations in the

future” by forcing government actors to internalize

the costs of misconduct. City of Riverside v. Rivera,

477 U.S. 561, 575 (1986). Federal agencies naturally

wish “to minimize the amount of their budget that is

lost to paying damages,” and Bivens actions “give[]

[these agencies] a greater incentive to monitor,

supervise, and control the acts of their employees” to

ensure that they are hewing to constitutional

strictures. Catherine Fisk & Erwin Chemerinsky,

Civil Rights Without Remedies: Vicarious Liability

Under Title VII, Section 1983, and Title IX, 7 Wm. &

Mary Bill Rts. J. 755, 796 (1999); see also John C.

Jeffries, Jr., The Liability Rule for Constitutional

Torts, 99 Va. L. Rev. 207, 240 (2013) (“[D]amages for

constitutional

violations

...

heighten

the

disincentives for governments to engage in conduct

that might result in constitutional violations.”).

Second, Bivens actions “can trigger bad publicity”

that puts pressure on policymakers to prevent

constitutional violations. Margo Schlanger, Inmate

Litigation, 116 Harv. L. Rev. 1555, 1681 (2003).

“[E]ven for an agency that doesn’t care about payouts

(perhaps because those payouts come from some

general fund rather than the agency’s own budget),

media coverage of abuses or administrative failures

can trigger embarrassing political inquiry and even

firings, resignations, or election losses.”

Id.

Constitutional damages remedies from Bivens

actions, even if “denominated in dollars,” “clearly

translate into the political currency”—such as

“negative publicity”—that “moves political actors.”

Joanna C. Schwartz, How Governments Pay:

Lawsuits, Budgets, and Police Reform, 63 UCLA L.

Rev. 1144, 1151, 1153 (2016) (noting that Bivens

actions can put critical “nonfinancial pressures” on

policymakers “by generating publicity about

allegations of misconduct and by revealing previously

unknown information about the details of that

misconduct”).

These informational and fault-fixing functions

have incentivized law enforcement agencies to pursue

policy changes. For example, according to interviews

with BOP officials, several large verdicts relating to

inmate suicides “prompted high-level policy review of

suicide prevention policies and practices.” Schlanger,

116 Harv. L. Rev. at 1682. In another case study,

during a periodic review of suits brought against

officers in the Los Angeles Sheriff’s Department under

42 U.S.C. § 1983, officials discovered “clusters of

improper vehicle pursuits, illegal searches, and

warrantless home entries” for which no civilian

complaint existed, and which “did not appear in

officers’ use-of-force reports.” Schwartz, 33 Cardozo

L. Rev. at 845. Once the Department’s auditor

identified the trend, he was able to recommend policy

changes to prevent additional violations going

forward, including “enhanced supervision to improve

vehicle pursuits and accuracy when responding to

calls.” Id. at 854.

Compared to these many benefits, the costs of

Bivens actions are exceedingly low. Although courts

do occasionally confront meritless Bivens actions, just

as they occasionally confront meritless actions of all

types, they have proven adept at screening such

actions when they arise. For example, the same

multidistrict survey cited above found that “almost

20% of the Bivens claims identified . . . were dismissed

sua sponte because the district court screened them

for frivolity and determined that they should be

dismissed out of hand,” thereby avoiding the “burdens

of Bivens litigation about which courts and

commentators express concern—no defendant is

subject to intrusive discovery or the potential of

liability, and no attorney even has to review the

complaint and prepare an answer or motion to

dismiss.” Reinert, 62 Stan. L. Rev. at 840. These

findings “persuasively refute[]” the prior “assumption

that Bivens claims typically lack merit” and

“threaten[] to overwhelm the federal judiciary.”

James E. Pfander, Iqbal, Bivens, and the Role of

Judge-Made Law in Constitutional Litigation, 114

Penn St. L. Rev. 1387, 1407 (2010).

Furthermore, Bivens cases make up a small

fraction of federal courts’ dockets. “As a percentage of

total civil filings involving federal questions, Bivens

suits filed between 2001 and 2003 ranged anywhere

from 0.7% to 2.5% of the work of” surveyed district

courts, “and 1.2% of the total federal question filings.”

Reinert, 62 Stan. L. Rev. at 835. And they comprise

less than 0.17 percent of all cases filed in federal court.

Id. at 837 (finding 243 Bivens filings out of 143,092

total civil filings in the districts surveyed).

Put simply, Bivens serves a critical function in not

only righting individual wrongs but incentivizing the

adoption of systemic reforms to ensure strict

adherence to the Constitution. Many plaintiffs who

assert claims under Bivens have in fact had their

rights infringed by federal officials, and those who

have not are unlikely to burden the judicial system

because their claims are unlikely to advance beyond

the very earliest stages of litigation. In other words,

truncating Bivens will leave those Americans who

have suffered a violation of their most fundamental

rights without a remedy, while gaining next to

nothing in terms of easing federal dockets.

Bivens is especially important for inmates in

federal custody. There are approximately 158,483

inmates in federal prisons across the country, all of

whom interact with rank-and-file prison officials on a

daily basis. Fed. Bureau of Prisons, Population

Statistics

(last

updated

Sept.

12,

2024),

https://tinyurl.com/47nu8xe4. Many of these inmates

experience abuse either at the hands of federal

officials or other inmates, which is often overlooked or

even acquiesced in by other officers. See, e.g., Wash.

Laws.’ Comm. for C.R. & Urb. Affs., Cruel and

Unusual: An Investigation into Prison Abuse at USP

Thomson, at 2 (2023), https://tinyurl.com/2mab5xnd

(“USP Thomson Investigation”) (“Hundreds of people

held in in the Federal Bureau of Prisons’ (BOP)

Special Management Unit (SMU) endured years of

unconstitutional and abusive conditions.”). In fact,

the BOP’s own data shows hundreds of violent

incidents against inmates each month. See Fed.

Bureau of Prisons, Serious Assaults on Inmates from

July 2024, https://tinyurl.com/4swpeh2h (last visited

Sept. 8, 2024); Fed. Bureau of Prisons, Less Serious

Assaults

Inmates

from

July

2024,

https://tinyurl.com/4jpanp2f (last visited Sept. 8,

2024).

In addition to assaults, murder is all too common

in federal prison. According to an investigation by the

DOJ’s Inspector General, homicide was the second

most prevalent cause of death in BOP institutions.

DOJ OIG Report. Some inmates died after federal

officials deliberately housed them with other inmates

known for violence. For example, a 2023 investigation

of the “Special Management Unit” at the U.S.

Penitentiary in Thomson, Illinois revealed that

officials there had a practice of punishing inmates by

“deliberately assign[ing] them a cellmate with whom

they had known conflicts, or who posed a physical or

sexual threat”—just like what Mr. Sargeant

experienced here. USP Thomson Investigation, at 2.

In one case, a Jewish inmate was locked with antiSemitic gang members who beat him to death while

prison officials looked on. Id. at 8. In another, an

inmate was forced to live with another inmate known

to be dangerous. Id. at 9. The inmate was stabbed

multiple times and then raped while unconscious. Id.

Bivens is the most effective mechanism to prevent

atrocities like these from occurring—and recurring—

in federal prisons. In addition to holding individual

officers who commit such acts accountable, Bivens

incentivizes government agencies like the BOP to

pursue systemic reforms to safeguard citizens’

constitutional rights, without intruding on these

agencies’ autonomy.

II. APPLYING BIVENS TO EIGHTH AMENDMENT

FAILURE-TO-PROTECT CLAIMS WOULD NOT

UNDULY INTRUDE ON THE FEDERAL PRISON

SYSTEM.

In declining to recognize a Bivens claim here, the

Seventh Circuit expressed concern that such a claim

“would interfere with the functioning of another

branch” because “failure-to-protect claims against

prison officials responsible for cell assignments under

Bivens will invariably implicate housing policies,

which factor in a sensitive mixture of things [courts]

are ill-positioned to assess—a prison’s determinations

about safety, discipline, and resources.” Pet. App.

14a–15a (citing Egbert, 596 U.S. at 493). But this

concern is unwarranted for at least three reasons.

First, by providing only a damages remedy, Bivens

does not mandate any programmatic changes at all,

much less does it require the courts to choose what

those changes should look like. Indeed, “a damages

award does not require discontinuation of such

practices, [but] it exerts significant pressure on

government and its officials to respect constitutional

bounds.” Richard H. Fallon, Jr. & Daniel J. Meltzer,

New Law, Non-Retroactivity, and Constitutional

Remedies, 104 Harv. L. Rev. 1731, 1788 (1991). For

this reason, recognizing a Bivens claim here would

leave the BOP free to determine housing policies

however it likes—and in doing so, would not only

facilitate institutional buy-in, but also encourage

experimentation and adaptation. And because the

Treasury Department’s Judgment Fund covers the

costs of judgments against federal prison officials,

Bivens would accomplish these ends without even

imposing meaningful financial burdens on the BOP.

See James E. Pfander et al., The Myth of Personal

Liability: Who Pays When Bivens Claims Succeed, 72

Stan. L. Rev. 561, 579 (2020) (finding, in a study of

171 successful Bivens cases, that the Judgment Fund

covered the payments while the BOP did not pay a

cent).

Second, a Bivens action against federal prison

officials would reach the courts only after the BOP has

had an opportunity to resolve the issue in the first

instance. Under the PLRA, a prisoner cannot bring a

claim regarding prison conditions until he or she has

first exhausted administrative remedies available

through the prison system. See 42 U.S.C. § 1997e(a)

(“No action shall be brought with respect to prison

conditions . . . until such administrative remedies as

are available are exhausted.”). Thus, the BOP will

have the opportunity to balance the “sensitive

mixture” of concerns cited by the panel, and only if it

fails to do so in a satisfactory manner will the court

have occasion to address the question.

Far from intruding on the BOP’s prerogatives,

Bivens plays an important role in maintaining

harmonious relations between prisoners and their

custodians by ensuring that prisoners feel that their

concerns will be heard and that abusive officers will

be held to account. Richard Van Wickler, a former

New Hampshire prison superintendent and member

of LEAP’s Board of Directors, extolls the benefits of

constitutional tort actions for prison officials.2 For

Mr. Van Wickler, “[p]risoners who are heard, and

reasonably responded to, contribute significantly to a

peaceful environment that benefits inmates and staff

alike.” He asserts that “holding government officials

accountable for conducting themselves professionally

should never be considered an unreasonable burden

on the government.” On the contrary, Mr. Van

Wickler believes that “heard claims contribute to a

peaceful correctional environment by ensuring that

unprofessional conduct is policed and corruption or

bad faith curtailed.”

Third, qualified immunity already provides

substantial protection against undue interference

2 Counsel for amici interviewed Mr. Van Wickler on February

14, 2024 for amici’s brief in the Seventh Circuit. His quotations

in this brief are from that interview.

with federal prison administration. Although amici

believe qualified immunity has become an overly

broad defense to all manner of misconduct by

government officials, and that the Court should

revisit its qualified immunity jurisprudence in an

appropriate case (particularly in cases arising under

42 U.S.C. § 1983, the text of which amici believe

provides no plausible basis for that judge-made

defense), the continued vitality of this doctrine

substantially mitigates any potential intrusion on

agency action that might otherwise result from

recognizing Bivens actions in cases like this one. See

Carlson, 446 U.S. at 19 (recognizing a Bivens cause of

action in an Eighth Amendment case and noting that

even if doing so “might inhibit [federal officers’] efforts

to perform their official duties, the qualified immunity

accorded them . . . provides adequate protection”).

Indeed, even when a plaintiff can plead a valid

constitutional tort under Bivens, that claim will be

rejected unless the federal officer’s conduct amounts

to a “clearly established” constitutional violation.

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

As one commentator recently observed, “currently,

both [the Bivens doctrine and qualified immunity]

function as barriers to plaintiffs bringing claims

against federal officers for violations of constitutional

rights.” Amelia G. Collins, The Bivens “Special

Factors” and Qualified Immunity: Duplicative

Barriers to the Vindication of Constitutional Rights,

55 U. Rich. L. Rev. 1, 16 (2021).3 This belt-and-

3 Bivens cases often incorporate qualified immunity analyses:

between Ziglar (decided June 19, 2017) and Hernandez (decided

February 25, 2020), there have been 18 qualified immunity

suspenders approach is unnecessary to protect

against unwarranted intrusion into federal

operations.

CONCLUSION

For the reasons stated above the Court should

grant the petition for certiorari and reverse the

Seventh Circuit’s judgment.

appeals involving Bivens claims in the federal circuit courts.

Bryan Lammon, Making Wilkie Worse: Qualified-Immunity

Appeals and the Bivens Question after Ziglar and Hernandez,

2020 U. Chi. L. Rev. Online 1, *7.

Respectfully submitted,