Petition for Writ of Certiorari — Michael D. Cohen, Petitioner v. Donald J. Trump, former President of the United States, et al.
Supreme Court briefJul 10, 2024
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No. 24In the
Supreme Court of the United States
MICHAEL D. COHEN,
Petitioner,
v.
UNITED STATES OF AMERICA, DONALD J. TRUMP,
WILLIAM P. BARR, MICHAEL D. CARVAJAL, JON
GUSTIN, PATRICK MCFARLAND, JAMES PETRUCCI,
ENID FEBUS, AND ADAM PAKULA,
Respondents.
On Petition for a Writ of Certiorari to the United
States Court of A ppeals for the Second Circuit
PETITION FOR A WRIT OF CERTIORARI
Jon-Michael Dougherty
Counsel of Record
Gilbert LLP
700 Pennsylvania Avenue,
S.E., Suite 400
Washington, DC 20003
(202) 772-2200
doughertyj@gilbertlegal.com
Counsel for Petitioner
330090
A
(800) 274-3321 • (800) 359-6859
i
QUESTIONS PRESENTED
Petitioner, Michael Cohen, was eligible for release from
federal prison to home confinement for health reasons. But
Respondents conditioned his release on his agreeing to waive
his First Amendment right to criticize Respondent Trump,
who was then the President of the United States. When
Cohen questioned this condition, Respondents revoked his
release, returned him to prison, and placed him in solitary
confinement. Cohen sought a writ of habeas corpus, and the
District Court granted it, finding that his confinement was
unconstitutional and retaliatory. But when Cohen brought
the present action, seeking damages under Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971),
the District Court granted Respondents’ motion to dismiss.
The court did so even though it recognized that Respondents
had violated his civil liberties and that injunctive relief
and habeas relief did not adequately remedy the harm
he had suffered and would not deter future violations of
constitutional rights. The Second Circuit affirmed and
subsequently denied Cohen’s petition for rehearing en banc.
The questions presented are:
1.
Whether a cause of action exists under Bivens
when federal officials imprison a critic in
retaliation for his refusal to waive his right to
free speech and there is no remedy to deter them
from doing so?
2.
Whether the retaliatory imprisonment of a
President’s critic presents a “most unusual
circumstance” under the Court’s ruling in Egbert
v. Boule, 596 U.S. 482 (2022), that necessitates
recognition of a new Bivens claim.
ii
PARTIES TO THE PROCEEDING
Petitioner Michael D. Cohen was the plaintiff in the
United States District Court for the Southern District of
New York and the appellant in the United States Court
of Appeals for the Second Circuit.
Respondents United States of America, Donald
J. Trump, William P. Barr, Michael D. Carvajal, Jon
Gustin, Patrick McFarland, James Petrucci, Enid Febus,
and Adam Pakula were defendants in the United States
District Court for the Southern District of New York and
the appellees in the United States Court of Appeals for
the Second Circuit.
John and Jane Doe (1–10) were defendants in the
United States District Court for the Southern District of
New York, but did not participate in Petitioner’s appeal
to the Second Circuit.
iii
RELATED PROCEEDINGS
This case arises from the following proceedings:
United States Courts of Appeals for the Second
Circuit:
• Cohen v. Trump, No. 23-35 (Mar. 7, 2024) (order
denying rehearing en banc);
and
• Cohen v. Trump, No. 23-35 (Jan. 2, 2024) (order
affirming the District Court’s judgment dismissing
Plaintiff’s claims).
United States District Court for the Southern District
of New York:
• Cohen v. United States, No. 1:21-cv-10774 (Nov.
14, 2022) (order granting Defendants’ Motion to
Dismiss).
Petitioner states that, under Supreme Cour t
Rule 14.1(b)(iii), there are no other proceedings in state or
federal trial or appellate courts, or in this Court, directly
related to this case.
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii
RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii
PETITION FOR WRIT OF CERTIORARI . . . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL PROVISION INVOLVED . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2
I.
FACTUAL BACKGROUND . . . . . . . . . . . . . . . . 6
A. Cohen’s Incarceration and Plan to Write
a Book Critical of Donald J. Trump . . . . . . . 6
B. Cohen’s Approved Release and Sudden
Remand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
v
Table of Contents
Page
C. Cohen’s Release from Prison . . . . . . . . . . . . 9
II. PROCEDURAL HISTORY . . . . . . . . . . . . . . . . 10
A. The District Court Proceedings . . . . . . . . .10
B. The Court of Appeals Proceedings . . . . . . 11
REASONS FOR GRANTING THE PETITION . . . . 13
I.
THE
SECOND
CIRCUIT
I NC OR R EC T LY A P PL I ED T H I S
COURT’S PRECEDENTS . . . . . . . . . . . . . . . . .13
A. Habeas and Injunctive Relief Are
Inadequate Remedies . . . . . . . . . . . . . . . . . 13
1.
The Second Ci rcuit Did Not
Articulate a Reason to Defer to
Congress for the Creation of a
Deterrent Remedy . . . . . . . . . . . . . . . . 17
B. The Defense of Civil Liberties Is the
Duty of the Courts, Not Congress . . . . . . . 18
II. THE QUESTIONS PRESENTED ARE
EXCEPTIONALLY IMPORTANT . . . . . . . . . 20
A. A New Bivens Claim Is Warranted
to Address This “Most Unusual
Circumstance” . . . . . . . . . . . . . . . . . . . . . . . 20
vi
Table of Contents
Page
III. This Case Is an Ideal Vehicle for the Court
to Clarify Existing Bivens Precedents and
Identify What Is an Adequate Alternative
Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
IV. If Bivens Is Unavailable, Some Remedy Must
Exist to Deter the Retaliatory Incarceration
of Critics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
vii
TABLE OF APPENDICES
Page
A PPENDIX A — SUMMARY ORDER OF
T H E U N I T ED S TAT E S C OU RT OF
APPEALS FOR THE SECOND CIRCUIT,
FILED JANUARY 2, 2024 . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — OPINION AND ORDER OF
THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW
YORK, FILED NOVEMBER 14, 2022 . . . . . . . . . . 10a
APPENDIX C — ORDER OF THE UNITED
STAT ES COU RT OF A PPEA LS FOR
T H E S E C ON D C I R C U I T, F I L E D
MARCH 7, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53a
viii
TABLE OF CITED AUTHORITIES
Page
CASES
Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971) . . . . . . . . . . . . 3, 4, 5, 12, 13, 15, 16,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20, 22, 23, 24
Carlson v. Green,
446 U.S. 14 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
Cohen v. Barr,
No. 1:20-cv-05614 (S.D.N.Y. July 20, 2020) . . . . . . . . 9
Cohen v. Barr,
No. 1:20-cv-05614 (S.D.N.Y. Jan. 26, 2021) . . . . . . . . . 3
Cohen v. Barr,
No. 1:20-cv-05614, 2020 WL 4250342
(S.D.N.Y. July 23, 2020) . . . . . . . . . . . . . . . . . . . . . . . . 9
Cohen v. Trump,
No. 23-35, 2024 WL 20558
(2d Cir. Jan. 2, 2024) . . . . . . . . . . . . . . . . . . . . . . . . 1, 17
Cohen v. United States,
640 F. Supp. 3d 324 (S.D.N.Y. 2022) . . . 1, 3, 6, 10, 15, 19
Corr. Servs. Corp. v. Malesko,
534 U.S. 61 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13
Davis v. Passman,
442 U.S. 228 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ix
Cited Authorities
Page
Egbert v. Boule,
596 U.S. 482 (2022) . . 4, 12, 13, 15, 16, 17, 18, 20, 22, 24
Hernandez v. Mesa,
589 U.S. 93 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Kim v. Hurston,
182 F.3d 113 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 14
Marbury v. Madison,
5 U.S. 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Mejia v. Miller,
61 F.4th 663 (9th Cir. 2023) . . . . . . . . . . . . . . . . . . . . 21
Morrissey v. Brewer,
408 U.S. 471 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Nixon v. Fitzgerald,
457 U.S. 731 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Quinones-Pimentel v. Cannon,
85 F.4th 63 (1st Cir. 2023) . . . . . . . . . . . . . . . . . . . . . . 21
Schneckloth v. Bustamonte,
412 U.S. 218 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Tracy v. Salamack,
572 F.2d 393 (2d Cir. 1978) . . . . . . . . . . . . . . . . . . . . . 14
x
Cited Authorities
Page
Xi v. Haugen,
68 F.4th 824 (3d Cir. 2023) . . . . . . . . . . . . . . . . . . . . . 21
Young v. Harper,
520 U.S. 143 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Ziglar v. Abbasi,
582 U.S. 120 (2017) . . . . . . . . . . . . . . . . . . . 5, 12, 23, 24
CONSTITUTIONAL PROVISIONS
U.S. CONST. art. IV . . . . . . . . . . . . . . . . . . 2, 4, 10, 14, 21
U.S. CONST. art. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
U.S. CONST. art. VIII . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 10
STATUTES
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 2241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
RULES
Supreme Court Rule 14.1(b)(iii) . . . . . . . . . . . . . . . . . . . iii
xi
Cited Authorities
Page
OTHER AUTHORITIES
Application to Associate Justice Sonia Maria
Sotomayor for an Extension of Time to File a
Petition for Writ of Certiorari, May 24, 2024 . . . . . . 1
Cohen v. Tr ump, at 14:45 -15:17 (Dec. 14,
2 0 2 3) , ht t p s : // w w 3 . c a 2 . u s c o u r t s . g o v/
d e c i s i o n s / i s y s q u e r y / 6 6 7e 2 7 7 b - c 1 d 5 4cdd-aab0-ce04eb7537d7/11-20/list/ . . . . . . . . . . . . . 16
Cohen v. Tr ump, at 15:50 -16:10 (Dec. 14,
2 0 2 3) , ht t p s : // w w 3 . c a 2 . u s c o u r t s . g o v/
d e c i s i o n s / i s y s q u e r y / 6 6 7e 2 7 7 b - c 1 d 5 4cdd-aab0-ce04eb7537d7/11-20/list . . . . . . . . . . . . . . 11
1
PETITION FOR WRIT OF CERTIORARI
Petitioner Michael D. Cohen (“Cohen”) respectfully
petitions for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Second Circuit.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Second Circuit is unpublished, but available at Cohen v.
Trump, No. 23-35, 2024 WL 20558, (2d Cir. Jan, 2, 2024);
Pet. App. 1a–9a. The Second Circuit’s order denying
rehearing en banc is likewise unpublished, but is available
at Cohen v. Trump, No. 23-35, 2024 WL 20558 (2d Cir.
Jan. 2, 2024). The order of the United States District
Court for the Southern District of New York is reported
at Cohen v. United States, 640 F. Supp. 3d 324 (S.D.N.Y.
2022). Pet. App. 10a–52a.
JURISDICTION
This Court has jurisdiction under 28 U.S.C. § 1254(1).
The Second Circuit issued its opinion and order affirming
the District Court’s dismissal on January 2, 2024. Pet.
App. 1a–9a. On March 7, 2024, the Second Circuit
denied rehearing en banc and entered judgment. Pet.
App. 53a–54a. On May 24, 2024, Cohen filed a request
for an extension of 35 days, up to and including July
10, 2024, to file the petition for a writ of certiorari. See
Application to Associate Justice Sonia Maria Sotomayor
for an Extension of Time to File a Petition for Writ of
Certiorari, May 24, 2024. Justice Sotomayor granted this
request on May 30, 2024.
2
CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment to the Constitution of the
United States provides, in part, that “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated . . . .”
STATEMENT OF THE CASE
In 1760, British parliamentarian John Wilkes
published an item in his newspaper, The North Briton,
criticizing King George III for a recent speech concerning
his handling of the French-American War in the colonies.
Incensed, the King locked Wilkes away for the crime of
“seditious libel.” Over the ensuing 30 years, the colonies
declared their independence from the King, won the
subsequent war, and founded a new form of government
with a constitution that protected people who criticized
the government from being thrown in prison without good
cause. Since then, the courts have zealously protected
Americans who criticized their government from being
arbitrarily imprisoned for exercising their right to free
speech.
Until this case. Here, Petitioner Michael Cohen, a
well-known critic of Respondent Trump, was scheduled
to be released from prison to home confinement. But
before releasing him, the Respondents demanded that he
waive his First Amendment right to criticize Respondent
Trump. When Cohen, who was writing a book critical of
Trump, did not agree immediately to waive his right to
free speech, he was summarily sent back to prison and
thrown into solitary confinement. Given these facts, the
3
Southern District of New York did not hesitate to find
that the government had retaliated against Cohen for his
speech and to grant Cohen’s petition for a writ of habeas
corpus and order him released. Stipulation and Order,
Cohen v. Barr, No. 1:20-cv-05614 (S.D.N.Y. Jan. 26, 2021),
ECF No. 36.
But when Cohen brought the present action
under Bivens, seeking damages for the Respondents’
unconstitutional conduct, the district court dismissed,
finding that this Court’s opinions interpreting Bivens
foreclosed Cohen’s claim. The district court reached this
result reluctantly, recognizing the “profound violence” it
inflicted on Cohen’s civil liberties and the inadequacy of
habeas corpus and injunctive relief in deterring future
misconduct. Cohen v. United States, 640 F. Supp. 3d 324,
340-41 (S.D.N.Y. 2022). The Second Circuit affirmed,
though the panel likewise questioned at oral argument
the adequacy of injunctive relief to deter governmental
misconduct.
Thus, as it stands, this case represents the principle
that presidents and their subordinates can lock away
critics of the executive without consequence. That cannot
be the law in the country the Founders created when they
threw off the yoke of the monarch who had imprisoned
Wilkes.
For these reasons, this case presents important and
recurring issues that require this Court’s resolution.
Applying the facts of this case, this Court must discern
the remaining contours of an implied damages action
under Bivens. Bivens created a private right of action
for damages against federal officers who conducted an
4
unlawful search in violation of the Fourth Amendment.
403 U.S. at 391–92. In the following decade, this Court
extended Bivens to the Due Process Clause of the Fifth
Amendment, Davis v. Passman, 442 U.S. 228 (1979), and
the Cruel and Unusual Punishment Clause of the Eighth
Amendment, Carlson v. Green, 446 U.S. 14 (1980). Since
then, the Court has declined to extend Bivens to any new
contexts.
But, despite numerous opportunities to discard Bivens
entirely, the Court has instead stated unequivocally that
Bivens remains good law. Egbert v. Boule, 596 U.S. 482,
486 (2022). In doing so, this Court has stated that a new
Bivens claim can be recognized in “the most unusual
circumstances.” Id. at 486. Petitioner respectfully submits
that this is that case. Cohen alleges, supported by the
findings of the District Court in his habeas case, that a
former President and his subordinates conspired to use
the federal prison system to silence one of the President’s
most vociferous and prominent public critics by revoking
his approved release from prison to home confinement
when the critic did not agree to waive his rights to speech.
More “unusual circumstances” in need of a deterrent
Bivens remedy are difficult to imagine.
And this Court has repeatedly stated that deterrence
is the primary purpose of a Bivens claim. See Egbert
v. Boule, 596 U.S. 482, 498 (2022) (noting that “Bivens
‘is concerned solely with deterring the unconstitutional
acts of individual officers’—i.e., the focus is whether the
Government has put in place safeguards to ‘preven[t]’
constitutional violations ‘from recurring’”) (citation
omitted); Hernandez v. Mesa, 589 U.S. 93, 125 (2020)
(noting that “[t]he purpose of Bivens is to deter the
5
officer”) (emphasis in original); Ziglar v. Abbasi, 582
U.S. 120, 145 (2017) (“There is a persisting concern,
of course, that absent a Bivens remedy there will be
insufficient deterrence to prevent officers from violating
the Constitution.”); Corr. Servs. Corp. v. Malesko, 534 U.S.
61, 62, 70 (2001) (“Bivens’ purpose is to deter individual
federal officers . . . from committing constitutional
violations.”); Carlson v. Green, 446 U.S. 14, 20–21 (1980)
(in applying a Bivens remedy to an Eighth Amendment
violation, the Court stated, “It is almost axiomatic that
the threat of damages has a deterrent effect, . . . surely
particularly so when the individual official faces personal
financial liability”).
Both the District Court and, at oral argument, the
Second Circuit recognized that the remedies available to
Petitioner outside of a Bivens action—namely, a successful
application for the writ of habeas corpus and for an
injunction against a second imprisonment—would not
deter federal officials from imprisoning the government’s
critics. Yet, the Second Circuit’s opinion affirming the
dismissal was silent on the issue of deterrence. Instead,
the Second Circuit held Petitioner’s Bivens claim
foreclosed because the habeas and injunctive remedies
exist and, therefore, constitute a sufficient alternative
to a Bivens claim. Thus, the Second Circuit’s decision
conflicts with this Court’s precedent emphasizing the
role of deterrence in considering the need for extending
Bivens to a new context.
6
I.
FACTUAL BACKGROUND
A.
Cohen’s Incarceration and Plan to Write a
Book Critical of Donald J. Trump
For more than ten years, Petitioner Cohen was
employed by Respondent Trump as his personal attorney.
Pet. App. 12a.1 In August and November 2018, Cohen
pled guilty to crimes committed at the direction of Trump
during his tenure as Trump’s employee, and as a result,
was sentenced to thirty-six months incarceration. Id. On
May 6, 2019, Cohen voluntarily surrendered to officials at
FCI Otisville to begin the service of his sentence. Pet.
App. 3a.
While incarcerated, Cohen began writing a book
detailing his experiences with Trump. Pet. App. 3a–
4a. Cohen’s work on the book was consistent with all
Bureau of Prisons (“BOP”) and FCI Otisville rules
and regulations. Cohen publicly announced the book’s
forthcoming publication, including statements that his
book would be unfavorable to Trump and would provide
additional support for his prior congressional testimony
that Trump was “‘a cheat, a liar, a conman, [and] a racist.’”
Pet. App. 12a (alteration in original).
Prior to and throughout 2020, Trump was running
for re-election. He was aware of Cohen’s testimony
before Congress concerning his behavior and character.
1. Because this is an appeal from an order granting a motion
to dismiss, the facts alleged in the Complaint must be accepted as
true. Cohen v. United States, 640 F. Supp. 3d 324 (S.D.N.Y. 2022),
ECF No. 76.
7
Cohen’s book, if published, could have damaged Trump’s
reputation and 2020 candidacy. Pet. App. 12a–13a.
B. Cohen’s Approved Release and Sudden Remand
In 2020, in response to the COVID-19 pandemic,
Respondent and then-Attorney General William Barr
authorized federal prison officials to release certain
categories of federal inmates to home confinement to
combat the spread of COVID-19. Pet. App. 13a. On
May 12, 2020, following the BOP’s approval of Cohen’s
petition for early release under Barr’s policy, Cohen
was released from FCI Otisville on furlough to home
confinement. Pet. App. 4a, 13a. During his furlough,
Cohen continued making public statements on social media
about his forthcoming book. Pet. App. 13a–14a.
On July 9, 2020, Cohen was instructed to appear at the
United States Probation and Pretrial Services (“PTS”)
office to effectuate his transition to home confinement.
Pet. App. 14a. During his visit to the PTS office,
Respondents Adam Pakula and Enid Febus, who were
PTS probation officers, provided Cohen with a Federal
Location Monitoring Program Participant Agreement
(“FLMPP Agreement”) to review and sign. Pet. App. 14a.
The form did not bear the standard identification number
stamped on official government documents. Pet. App. 15a.
The first paragraph of the FLMPP Agreement provided:
No engagement of any kind with the media,
including print, tv, film, books, or any other
form of media/news. Prohibition from all social
media platforms. No posting on social media
and a requirement that you communicate
8
with friends and family to exercise discretion
in not posting on your behalf or posting any
information about you. The purpose is to avoid
glamorizing or bringing publicity to your status
as a sentenced inmate serving a custodial term
in the community.
Pet. App. 14a. (punctuation, spelling, and syntax in
original).
This was not a standard provision in an FLMPP
Agreement. Pet. App. 15a. It would have prevented
Cohen from publishing his book and speaking publicly
about Trump. Id. Cohen and his attorney asked if this
apparently bespoke provision could be removed. Id. The
probation officers responded that they would consult with
their superiors. Pet. App. 15a–16a. After Cohen waited
for an hour and a half, three United States Marshals
entered the room and served Cohen with an order of
remand signed by Respondent Patrick McFarland, a
BOP employee, directing Cohen be returned to prison for
allegedly refusing to agree to the FLMPP Agreement.
Pet. App. 16a.
Cohen was shackled and transported back to FCI
Otisville. Id. Respondent James Petrucci, the prison’s
warden, placed Cohen in solitary confinement where
Cohen spent roughly twenty-three-and-a-half hours a day
alone in a cell with poor ventilation, no air conditioning, and
a broken window. Pet. App. 17a. Temperatures regularly
exceeded 100 degrees in Cohen’s cell. Id. Cohen’s health
suffered, with his blood pressure becoming dangerously
high, resulting in severe headaches, shortness of breath,
and anxiety. Id. While in solitary confinement, Cohen
9
was unable to complete his book or make any public
statements. Id.
C.
Cohen’s Release from Prison
On July 20, 2020, Cohen petitioned the United States
District Court for the Southern District of New York for
a writ of habeas corpus and a motion for an emergency
temporary restraining order (“TRO”). Id.; see also Verified
Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241,
Cohen v. Barr, No. 1:20-cv-05614 (S.D.N.Y. July 20, 2020),
ECF No. 14; Notice of Petitioner’s Emergency Motion for
a Temporary Restraining Order, Cohen v. Barr, No. 1:20cv-5614 (S.D.N.Y. July 20, 2020) ECF No. 4. On July 23,
2020, the district court held a hearing and ordered Cohen’s
release to home confinement, and also issued an injunction
prohibiting the government from returning him to prison
for his speech. Pet. App. 5a, 17a. Judge Hellerstein
found that Cohen had been imprisoned for exercising
his constitutional right: he stated that the “purpose in
transferring Cohen from release on furlough and home
confinement back to custody was retaliatory in response to
Cohen desiring to exercise his First Amendment rights to
publish a book critical of the President and to discuss the
book on social media.” Pet. App. 5a n.2; see also Cohen v.
Barr, No. 1:20-cv-05614, 2020 WL 4250342, at *1 (S.D.N.Y.
July 23, 2020). After sixteen days of solitary confinement
in a sweltering cell at FCI Otisville, Cohen was released
to home confinement. Pet. App. 5a.
10
II. PROCEDURAL HISTORY
A.
The District Court Proceedings
On December 16, 2021, Cohen filed the present action in
the United States District Court for the Southern District of
New York. His complaint asserted, among others, a Bivens
claim against Respondents for violations of his Fourth and
Eighth Amendment rights. Respondents moved to dismiss.
On November 14, 2022, the district court granted the motion.
Judge Liman reasoned that Cohen’s claim for damages under
Bivens was precluded by this Court’s decisions limiting
Bivens. Pet. App. 10a–11a; see also Cohen v. United States,
640 F. Supp. 3d 324, 340–41 (S.D.N.Y. 2022). Nonetheless,
Judge Liman was disturbed by the “profound violence” his
dismissal did to Cohen’s constitutional rights:
Cohen’s complaint alleges an egregious violation
of constitutional rights by the executive
branch—nothing short of the use of executive
power to lock up the President’s political
enemies for speaking critically of him. The
Supreme Court’s precedents ensure that there
is at best a partial remedy for the abuse of power
and violation of rights against the perpetrators
of those wrongs. And those precedents rest
on a mistaken proposition—that the Court’s
reluctance to imply a damages remedy for
statutorily created rights where Congress
did not explicitly intend for there to be such a
remedy necessarily must extend to a reluctance
to find such a remedy for constitutionally
guaranteed rights.
...
11
[A] proper inquiry . . . would look to whether
the framers—in the language they used, the
structure of the government they established,
the limitations they intended to place on
executive power, and the authority they gave
to the federal courts—intended for there to be
such a remedy. There are powerful reasons to
believe that, in many circumstances, the answer
to that question will be yes, . . . if one’s rights
are violated by executive officials, the courts
provide a legal remedy for that violation.
Id. at 341–42 (emphasis in original) (internal citations
omitted). And though Judge Liman noted the availability
of injunctive relief and a writ of habeas corpus further
supported the dismissal of Cohen’s claim under existing
law, he acknowledged that injunctive and habeas relief did
not suffice to deter constitutional violations. Id. at 340–41.
B. The Court of Appeals Proceedings
Cohen appealed, Pet. App. 6a, and on December 14,
2023, the Second Circuit heard oral argument. Judges
Myrna Pérez and Barrington D. Parker, Jr., questioned
whether the Government could reconcile its position that
habeas corpus and injunctive relief—which serve to
stop and prevent the repetition of executive abuse, but
do not deter it in the first place—are adequate remedies
consistent with the Supreme Court’s statements that an
adequate Bivens remedy’s primary function is to deter
future misconduct by federal officials. 2
2. See Oral A rg ument Recording, Cohen v. Tr ump, at
15:50–16:10 (Dec. 14, 2023), https://ww3.ca2.uscourts.gov/decisions/
isysquery/667e277b-c1d5-4cdd-aab0-ce04eb7537d7/11-20/list/.
12
Despite raising this question at oral argument, the
Court of Appeals affirmed the District Court. Pet.
App. 1a–9a. The Court of Appeals conducted the twostep inquiry this Court first articulated in Ziglar v.
Abbasi, 582 U.S. 120 (2017). For the first step, the court
examined whether the claim at issue arises in a “new
context” or involves a “new category of defendants[,]”
and concluded that Cohen’s Bivens claims involved new
categories of defendants not found in Bivens and that the
claim therefore differed enough from the one in Bivens to
constitute a new context. Pet. App. 7a–8a.
Applying the second step of the Ziglar inquiry, the
Court of Appeals then asked whether any special factor
existed to justify extending Bivens to a new context.
Id. In a brief analysis, the Court of Appeals stated that,
“[u]nder the circumstances presented here, a successful
petition for habeas relief is sufficient to foreclose Cohen’s
Bivens claims.” Pet. App. 9a. Despite recognizing at oral
argument the importance of deterrence in assessing the
adequacy of an alternative remedy, the Court of Appeals’
opinion did not discuss deterrence. Pet. App. 1a–9a. The
opinion also did not address Cohen’s argument that these
are the “most unusual circumstances” that Egbert posited
might present a new Bivens context. Nor did the Second
Circuit discuss Cohen’s argument that, in the absence
of Bivens relief, some form of deterrent remedy must
be available when a federal judge finds the Government
violated an individual’s right to speech by locking them
in prison. Id.
(Judge Parker: “[t]he defendant here is the executive, the allegation
is that the wrong was perpetrated by the executive. . . . [C]onfer[ring]
with the executive in a case like this to fashion an adequate
remedy . . . doesn’t make any sense.”).
13
Cohen petitioned for rehearing en banc. On March
7, 2024, the Second Circuit denied the petition. Pet.
App. 54a.
REASONS FOR GRANTING THE PETITION
I.
T H E SECON D CI RC U I T I NCORREC T LY
APPLIED THIS COURT’S PRECEDENTS
A.
Habeas and Injunctive Relief Are Inadequate
Remedies
The remedies of writ of habeas corpus and injunctive
relief are inadequate remedies under this Court’s Bivens
precedents because they provide no deterrence for
future similar abuses by federal officials. In Egbert, this
Court reiterated that the purpose of a Bivens action is
to deter unconstitutional behavior by federal officials.
Egbert v. Boule, 596 U.S. 482, 498 (2022) (“Bivens ‘is
concerned solely with deterring the unconstitutional
acts of individual officers’—i.e., the focus is whether the
Government has put in place safeguards to ‘preven[t]’
constitutional violations ‘from recurring.’” (quoting Corr.
Serv. Corp. v. Malesko, 534 U.S. 61, 74 (2001)). Courts
are barred from “superimposing a Bivens remedy” only
if “Congress or the Executive has created a remedial
process that it finds sufficient to secure an adequate level
of deterrence . . .” Id.
As an initial matter, there is no doubt—and the
Respondents do not contest—that Cohen suffered a
violation of his constitutional rights in need of some remedy.
Cohen’s complaint, supported by Judge Hellerstein’s
14
ruling, alleges that, at the direction of Trump, 3 Cohen
was reincarcerated after he was approved for release to
home confinement and placed him in an uninhabitable cell
because he did not waive his right to speak critically of the
President. The revocation of Cohen’s approved release to
home confinement and incarceration in squalid conditions
in retaliation for his refusal to waive his speech rights is
a clear violation of his Fourth Amendment rights.4
The question then arises—what is the appropriate
remedy for such a gross violation of civil liberties?
Judge Liman and Second Circuit, in reasoning through
this Court’s line of Bivens cases, found that habeas and
injunctive relief were adequate remedies. But they are
not, because they do not vindicate this Court’s emphasis
on deterrence. Habeas and injunctive relief do not provide
3. The allegation that President Trump personally ordered
Cohen’s remand is supported by the one-and-a-half-hour delay
between Cohen’s review of the FLMPP and the appearance of the
U.S. Marshal’s bearing Respondent McFarland’s remand order, and
by the reasonable conclusion that mid-level federal officials would
not unilaterally decide to revoke the approved release of one of the
federal prison system’s highest-profile prisoners simply for asking
a question about the conditions of his release without orders from
his or her superiors. At the motion to dismiss stage, the Plaintiff’s
allegations are accepted as true. Discovery will reveal what role
President Trump and other officers had in ordering Petitioner’s
remand to Otisville.
4. Prisoners have a liberty interest in less restrictive forms of
confinement. Once a less restrictive form of confinement is granted,
it may not be revoked without a valid reason and a hearing to contest.
See Morrissey v. Brewer, 408 U.S. 471 (1972) (parole); Young v.
Harper, 520 U.S. 143 (1997) (pre-parole); Tracy v. Salamack, 572 F.2d
393 (2d Cir. 1978) (temporary release); Kim v. Hurston, 182 F.3d 113
(2d Cir. 1999) (work release).
15
a reason for a President or any subordinate officer to
refrain from incarcerating a critic in the first place.
These remedies only say “stop” (habeas) and “don’t do it
again” (injunction). In the absence of an “adequate level
of deterrence” in the legislatively- approved remedies, the
courts are empowered to consider a Bivens claim. Egbert,
596 U.S. 482 at 498.
Nonetheless, the district court correctly recognized
that habeas relief neither “compensate[s] Cohen for
or address[es] the harms Cohen had already suffered
prior to the issuance of the injunction,” nor “eliminate[s]
the deterrent effect that imprisonment (in solitary
confinement) can have on all but the most intrepid.”
Cohen v. United States, 640 F. Supp. 3d 324, 340 (S.D.N.Y.
2022). At the December 14, 2023 oral argument, Judges
Barrington D. Parker, Jr. and Myrna Pérez questioned
whether the Government could reconcile its position that
habeas and injunctive relief are adequate remedies with
this Court’s statement that an adequate remedy would
deter future unconstitutional behavior by federal officials:
JUDGE PARKER: Which of the remedies
you’ve outlined has a deterrent component to it?
GOVERNMENT: So, I think habeas relief and
injunctive relief. Injunctive relief generally
does have a deterrent effect. It provides—it
provides notice to all of those who may be in a
similar situation that those actions were found
to be unlawful.
JUDGE PÉREZ: Right, but there’s no—how—
where’s the deterrence in that? The notice, like
16
the ‘after the fact you’re not going to get away
with it,’ is not actually precluding somebody
from doing something in advance.
…
JUDGE PARKER: The Defendant here is
the Executive. The allegation is that . . . the
wrong was perpetrated by the Executive. So,
your suggestion that you’ve got to confer with
the Executive in a case like this, to fashion an
adequate remedy, I may be missing something,
but it doesn’t make any sense to me. 5
The record is thus clear that both the District Court
and a majority of the Second Circuit panel believed that
injunctive relief and habeas relief do not adequately
serve the deterrent purpose at the heart of Bivens. This
Court has never held that “remedies providing no relief
to the individual whose constitutional rights have been
violated are ‘adequate’ for the purpose of foreclosing
a Bivens action.” Egbert, 596 at 524. This Court’s
precedents make plain that deterrence is of paramount
importance in assessing the adequacy of an alternative to
5. Id. at 14:04–16:11. When pressed further, the Government
shifted its argument, asserting instead that this Court in Egbert
said Congress and the Executive must determine whether a remedy
affords adequate deterrence. The Second Circuit panel noted the
Government’s retreat. See Oral Argument Recording, Cohen v.
Trump, at 14:45–15:17 (Dec. 14, 2023), https://ww3.ca2.uscourts.gov/
decisions/isysquery/667e277b-c1d5-4cdd-aab0-ce04eb7537d7/11-20/
list/ (Judge Perez: “Okay, but now that’s walking away. So, your
position is not that either of those two remedies that you suggested
provide deterrence, but Congress is the one that gets to do it.”). The
Government’s alternative argument is addressed at pp. 16–17 below.
17
a Bivens remedy, and that the need for a Bivens remedy
is heightened when the facts of a case demonstrate the
need for deterrence.
1.
The Second Circuit Did Not Articulate
a Reason to Defer to Congress for the
Creation of a Deterrent Remedy.
Despite a majority of the panel recognizing the
importance of deterrence in assessing the inadequacy of
habeas and injunctive relief as alternatives to a Bivens
remedy, the Second Circuit ultimately held that, “[u]nder
the circumstances presented here, a successful petition
for habeas relief is sufficient to foreclose [Cohen’s] Bivens
claims.” Cohen v. Trump, No. 23-35, 2024 WL 20558,
Doc. 119-1 at 7 (2d Cir. Jan, 2, 2024). But in reaching that
decision, the Second Circuit did not meaningfully engage
in the core analysis this Court has laid out for a Bivens
claim—whether there is “any reason” to defer to Congress
for the creation of a remedy. See Egbert, 596 U.S. at 483.
(The “two-step inquiry often resolves to a single question:
whether there is any reason to think that Congress might
be better equipped to create a damages remedy.”).
Here, there is no good reason to think Congress
intended for habeas and injunctive relief to be the sole
remedies against the unprecedented incarceration of the
President’s critics. There is no good reason to think that
Congress, and not the courts, should craft the remedy
to prevent and deter the executive from incarcerating
critics. To the contrary, there are numerous reasons that
the courts, whose traditional role is the guarding of civil
liberties from the encroachments of the political branches
of government, have the duty to ensure that there is a
18
meaningful check against federal officials who would
silence critics by imprisoning them. See Schneckloth
v. Bustamonte, 412 U.S. 218, 229 (1973) (“It is the duty
of courts to be watchful for the constitutional rights of
the citizen, and against any stealthy encroachments
thereon.”). The Second Circuit’s opinion did not engage
with any of these reasons. It is thus left to this Court to
decide whether there is any consequence for executives
who incarcerate their critics.
B. The Defense of Civil Liberties Is the Duty of
the Courts, Not Congress
The Court has said that if there is a “single reason”
to defer to Congress for the creation of a remedy for a
constitutional violation, the courts should refrain from
recognizing a new Bivens remedy. Egbert, 596 U.S. 482
at 491. Here, there is no reason to defer to Congress to
stop the executive from incarcerating its critics. There are
many reasons to think the courts should be the bulwark
against such abuses.
The defense of civil liberties has always been a job for
the Courts. See Nixon v. Fitzgerald, 457 U.S. 731, 789–90
(1982) (“First, it is not the exclusive prerogative of the
Legislative Branch to create a federal cause of action for
a constitutional violation.”) As the traditional guardians
of the boundary between power and rights, the courts are
best positioned to craft the urgently needed mechanism
to prevent the abuse heaped on Petitioner from befalling
anyone else who speaks critically of our government and
its leaders.
19
As Judge Liman stated:
[A] proper inquiry . . . [–]one that would honor
the important distinction between rights
conferred by a legislative majority and rights
conferred by the Constitution—would look to
whether the framers—in the language they
used, the structure of the government they
established, the limitations they [] place[d] on
executive power, and the authority they gave
to the federal courts—intended for there to be
such a remedy. There are powerful reasons to
believe that, in many circumstances, the answer
to that question will be yes, . . . if one’s rights
are violated by executive officials, the courts
provide a legal remedy for that violation.
Cohen v. United States, 640 F. Supp. 3d 324, 340–42
(S.D.N.Y. 2022).
This Could should conduct the analysis Judge Liman
suggests and safeguard the constitutional rights of Cohen
by granting him an adequate deterrent remedy. See
Marbury v. Madison, 5 U.S. 137, 163 (1803) (“[W]here
there is a legal right, there is also a legal remedy by suit
or action at law, whenever that right is invaded. . . . The
government of the United States has been emphatically
termed a government of laws, and not of men. It will
certainly cease to deserve this high appellation, if the
laws furnish no remedy for the violation of a vested legal
right.”).
20
II. T H E Q U E S T I O N S P R E S E N T E D A R E
EXCEPTIONALLY IMPORTANT
The questions presented in this petition are of
paramount importance. The possibility that the federal
government has the power to retaliate against critics
with imprisonment, without any consequence for or
check against the officials engaged in such retaliation, is
a chilling prospect. This Court should not turn its eyes
away from this profound breach of the contract between
a government of limited powers and a free citizenry.
A.
A New Bivens Claim Is Warranted to Address
This “Most Unusual Circumstance”
While this Court has narrowed the availability of a
new Bivens claim, it has nonetheless declined to overrule
Bivens. Thus, Bivens remains good law. And the Court
has made clear that it is still willing to find a new Bivens
claim in the “most unusual circumstances.” See Egbert,
596 U.S. at 486. This is that case.
It is more than the “most unusual circumstances”
for a President to abuse his power by placing one of his
critics in prison. In this country’s 250-year history, it is
an unprecedented act that violates the most fundamental
values of our constitutional republic. If this case does
not constitute the “the most unusual circumstance,” then
what case would?
This Court has not yet decided a case explaining
what would constitute “the most unusual circumstances.”
The Circuit courts have noted the significance of the
Court’s introduction of this exception, but have yet to
21
meaningfully analyze it or find any case to be sufficiently
“unusual.” See Mejia v. Miller, 61 F.4th 663, 669 (9th Cir.
2023) (plaintiff sought Bivens remedy against a Bureau
of Land Management’s officer’s alleged use of excessive
force; “In short, under Egbert ‘in all but the most unusual
circumstances, prescribing a cause of action is a job for
Congress, not the courts.’ . . . This case is not the rare
exception.”); see also Quinones-Pimentel v. Cannon,
85 F.4th 63, 74 (1st Cir. 2023) (plaintiffs brought Bivens
action against federal prosecutors, FBI agents and
employees alleging unconstitutional searches and seizures
of company offices and data center; “[E]ven a single reason
to pause before applying Bivens in a new context” is
sufficient to preclude relief, because “in all but the most
unusual circumstances, prescribing a cause of action is a
job for Congress, not the courts.”); see also Xi v. Haugen,
68 F.4th 824, 836 (3d Cir. 2023) (plaintiff brought a Bivens
action against an FBI counterintelligence agent involved
in investigation of plaintiff; ‘“[I]n all but the most unusual
circumstances, prescribing a cause of action is a job for
Congress, not the courts,’ . . . Such is the case here, where
one overriding special factor counsels against the creation
of a judicially-implied Bivens remedy: the implication of
national security interests.”)
The Fourth Amendment recognizes that every
person is to be free from unreasonable seizure. There
is no question that Cohen’s claim is premised on an
unreasonable seizure. The Second Circuit failed to
address whether this particular unreasonable seizure
amounted to the “most unusual circumstances” sufficient
to warrant what the Government asserts is a new Bivens
claim. Certiorari is thus warranted here.
22
III. THIS CASE IS AN IDEAL VEHICLE FOR THE
COURT TO CLA RIFY EXISTING BIVENS
PRECEDENTS AND IDENTIFY WHAT IS AN
ADEQUATE ALTERNATIVE REMEDY
The remaining scope of Bivens is an important and
recurring issue. This case squarely presents a singular
opportunity for this Court to clarify the continuing force
of Bivens. The issue at the center of this case—what is
an adequate remedy for the retaliatory imprisonment of a
President’s critic—is of paramount and (hopefully rarely)
continuing importance. A case involving such fundamental
questions of the relationship between a government of
limited powers and a citizenry imbued with inalienable
rights presents an ideal vehicle for the Court to make
clear just how much life is left in Bivens.
This case presents an ideal occasion for the Court
to Bivens and its progeny. This Court made clear in
Egbert that it is possible for a court to recognize a new
Bivens context in “the most unusual circumstances,”
and that a litigant must demonstrate that, in such rare
circumstances, there must be no reason to defer to
Congress for the creation of a damages remedy. 596 U.S.
at 486, 491–92. However, the Court has never addressed
what constitutes “the most unusual circumstances” that
warrant extension of a Bivens claim, leaving a gap in the
Bivens jurisprudence, which is evidenced by the dearth
of analysis under existing precedents. The Court has not
explained what sort of reason would counsel a court to cede
the defense of fundamental civil liberties to Congress,
when the alleged violation threatens the fundamental
relationship between a limited executive and a free
citizenry. This case provides a clean opportunity for this
Court to fill in these gaps.
23
This case is also an ideal vehicle for this Court to
clarify what constitutes an adequate alternative remedy
to a Bivens action. The sole basis for the Second Circuit’s
decision was its conclusion that Cohen’s Bivens claim
is foreclosed because Cohen had available alternative
forms of judicial relief, namely, his successful petition for
habeas and an injunction. But, as discussed above, the
defining characteristic and rationale for Bivens has always
been deterrence. The need for deterrence will never be
more acute than in a case involving the President’s use
of the prisons to silence his critics, strongly favoring the
recognition of a new Bivens cause of action, or some other
deterrent remedy.
Both the district court and the majority of the
appellate panel at oral argument recognized that habeas
and injunctive relief do not suffice to deter federal officials
from retaliatory incarceration of governmental critics.
Nevertheless, relying on Ziglar, the Second Circuit found
habeas and injunctive relief to be adequate alternative
forms of relief, precluding Cohen’s Bivens claims.
In Ziglar, the Court considered new Bivens claims
brought by detainees held in the aftermath of the
September 11, 2001 terrorist attacks. The Court
recognized the need to prevent officers from violating the
Constitution, especially those executive actions that have
the “sweeping potential to affect the liberty of so many[.]”
Id. at 145–46. The Court expressly stated that injunctive
relief or a writ of habeas corpus is appropriate to address
“large-scale policy decisions concerning the conditions of
confinement imposed on hundreds of prisoners.” Id. at 144.
As Ziglar involved a national-security policy after the
worst attack in this nation’s history, the Court rejected the
24
detainees’ Bivens claims for fear that recognizing them
may deter high officers from taking “urgent and lawful
action in a time of crisis.” Id. at 145.
In contrast to Ziglar, Petitioner’s claim does not
call into question “large-scale policy decisions.” The
circumstances here do not reflect a need to balance
officials’ ability to take “urgent and lawful action in
a time of crisis” against civil liberties. Id. at 144–45.
Rather, Petitioner challenges an individual instance of a
constitutional violation as repugnant as any imaginable—
the incarceration of critics for their refusal to cease their
criticism. The high rank of the executive officials named
in Petitioner’s suit and the implications of the lack of a
deterrent remedy against them and similarly situated
future officials underscores the special risks presented
by this case and the need for an effective, practical,
and adequate deterrent. Habeas and injunctive relief
will not by themselves “secure an adequate level of
deterrence . . . .” Egbert, 596 U.S. at 498. It is apparent
that to deter individual officers’ wrongdoing like the one
in this case, it is Bivens or nothing. Thus, this Court’s
review is warranted and urgently needed.
IV. IF BIVENS IS UNAVAILABLE, SOME REMEDY
MUST EXIST TO DETER THE RETALIATORY
INCARCERATION OF CRITICS
The Second Circuit’s opinion was silent on Cohen’s
argument that, in the absence of Bivens relief, there
must be some remedy when a federal judge finds the
Government violated an individual’s right to speech by
confining him to prison. As Judge Liman recognized,
a nation of ordered liberty must afford a significant
deterrent remedy beyond “stop” and “don’t do it again”
25
when the executive incarcerates its critics. Presidents are
not kings and John Wilkes’s fate should not be possible
in this country.
CONCLUSION
For the reasons discussed, the Court should grant the
petition for writ of certiorari.
Respectfully submitted,
Jon-Michael Dougherty
Counsel of Record
Gilbert LLP
700 Pennsylvania Avenue,
S.E., Suite 400
Washington, DC 20003
(202) 772-2200
doughertyj@gilbertlegal.com
Counsel for Petitioner
July 10, 2024
APPENDIX
i
TABLE OF APPENDICES
Page
A PPENDIX A — SUMMARY ORDER OF
T H E U N I T ED S TAT E S C OU RT OF
APPEALS FOR THE SECOND CIRCUIT,
FILED JANUARY 2, 2024 . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — OPINION AND ORDER OF
THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW
YORK, FILED NOVEMBER 14, 2022 . . . . . . . . . . 10a
APPENDIX C — ORDER OF THE UNITED
STAT ES COU RT OF A PPEA LS FOR
T H E S E C ON D C I R C U I T, F I L E D
MARCH 7, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53a
1a
Appendix A ORDER OF THE
APPENDIX A — SUMMARY
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT, FILED JANUARY 2, 2024
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 23-35
MICHAEL D. COHEN,
Plaintiff-Appellant,
v.
DONALD J. TRUMP, FORMER PRESIDENT OF
THE UNITED STATES, WILLIAM P. BARR,
FORMER ATTORNEY GENERAL OF THE
UNITED STATES, MICHAEL D. CARVAJAL,
DIRECTOR OF THE BUREAU OF PRISONS,
JON GUSTIN, ADMINISTRATOR OF THE
RESIDENTIAL REENTRY MANAGEMENT
BRANCH OF THE BUREAU OF PRISONS,
PATRICK MCFARLAND, RESIDENTIAL
REENTRY MANAGER OF THE FEDERAL
BUREAU OF PRISONS, JAMES PETRUCCI,
WARDEN OF FCI OTISVILLE, ENID FEBUS,
SUPERVISORY PROBATION OFFICER OF THE
UNITED STATES PROBATION AND PRETRIAL
SERVICES, ADAM PAKULA, PROBATION
OFFICER OF THE UNITED STATES PROBATION
AND PRETRIAL SERVICES,
Defendants-Appellees.*
* The Clerk of Court is respectfully directed to amend the
official caption as set forth above.
2a
Appendix A
Filed January 2, 2024
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE
PRECEDEN TI A L EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY
1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDER A L A PPENDI X OR A N
ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City
of New York, on the 2nd day of January, two thousand
twenty-four.
PRESENT:
BARRINGTON D. PARKER
MYRNA PÉREZ,
SARAH A. L. MERRIAM,
Circuit Judges.
Appeal from a judgment of the United States District
Court for the Southern District of New York. (Lewis J.
Liman, J.).
3a
Appendix A
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is AFFIRMED.
Plaintiff-Appellant Michael D. Cohen (“Cohen”)
appeals portions of the district court’s November 15,
2022 judgment dismissing his claims against DefendantsAppellees. At issue in this appeal is whether Cohen has a
claim for damages under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91
S. Ct. 1999, 29 L. Ed. 2d 619 (1971), against DefendantsAppellees for purported violations of the Fourth and
Eighth Amendments of the United States Constitution.
We assume the parties’ familiarity with the underlying
facts, procedural history, and issues on appeal, to which we
refer only as necessary to explain our decision to affirm.
BACKGROUND
Cohen worked as an attorney and advisor for former
President of the United States Donald J. Trump (“Trump”)
both before and during Trump’s term as President.1 In
the fall of 2018, Cohen pled guilty to various violations
of federal law and was sentenced to thirty-six months’
incarceration. Cohen began serving his sentence on May
6, 2019, at Federal Correctional Institution Otisville (“FCI
Otisville”). During his incarceration, Cohen wrote a draft
1. We take Cohen’s factual allegations from his complaint. See
App’x at 11-37. We are “required to accept all ‘well-pleaded factual
allegations’ in the complaint as true.” Lynch v. City of New York,
952 F.3d 67, 74-75 (2d Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 679, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)).
4a
Appendix A
of a book detailing his experiences with Trump, which
Cohen publicly stated would portray Trump in a negative
and critical light.
Cohen was released from FCI Otisville on furlough to
home confinement on May 12, 2020, after the Bureau of
Prisons (“BOP”) had approved Cohen’s petition for early
release in the wake of the COVID-19 pandemic. Cohen
made additional public statements about his book while on
furlough. In July 2020, Cohen was instructed to visit the
United States Probation and Pretrial Services (“PTS”)
office. When Cohen and his attorney visited the PTS office,
a supervisory probation officer and a probation officer
presented them with a Federal Location Monitoring
Program Participant Agreement (“FLMPP Agreement”).
The FLMPP Agreement prohibited Cohen from engaging
with the media and from using any social media platform.
Cohen and his attorney asked the probation officers if
it was possible to change the FLMPP Agreement to
remove or revise this language, and the probation officers
responded that they would speak to their supervisors.
After Cohen waited approximately ninety minutes for
the probation officers’ return, three deputy United States
Marshals entered the room and served Cohen with a
remand order. The probation officers informed Cohen
that the situation was out of their hands and the FLMPP
Agreement had been rescinded. The deputy Marshals
took Cohen into custody.
Cohen was transported back to FCI Otisville where
the warden ordered that Cohen be placed in solitary
confinement. Cohen was placed in solitary confinement
5a
Appendix A
for sixteen days where he spent roughly twenty-three and
a half hours a day alone with poor ventilation and no air
conditioning. On July 20, 2020, Cohen filed a petition for
a writ of habeas corpus and a motion for an emergency
temporary restraining order (“TRO”) in the United
States District Court for the Southern District of New
York. See Cohen v. Barr, No. 1:20-cv-05614-AKH, ECF
Nos. 1, 4 (S.D.N.Y. July 20, 2020). On July 23, 2020, the
district court held a hearing on Cohen’s petition for a writ
of habeas corpus and motion for an emergency TRO, and
subsequently, it issued an injunction ordering Cohen’s
release from custody. 2 Cohen was released to home
confinement on July 24, 2020.
In December 2021, Cohen filed this civil action against
Defendants-Appellees. Cohen alleges that DefendantsAppellees retaliated against him for his public comments
and his anticipated book criticizing Trump. He further
alleges that the revocation of his furlough and home
confinement, and subsequent remand to BOP custody,
violated the Fourth Amendment’s protection against
unreasonable seizures, and that his placement in solitary
confinement violated the Eighth Amendment’s protection
against cruel and unusual punishment. DefendantsAppellees moved to dismiss Cohen’s complaint arguing
that, among other things, Cohen did not have a claim
2. The district court stated: “The Court finds that Respondents’
purpose in transferring Cohen from release on furlough and home
confinement back to custody was retaliatory in response to Cohen
desiring to exercise his First Amendment rights to publish a book
critical of the President and to discuss the book on social media.”
App’x at 39.
6a
Appendix A
under Bivens. The district court granted DefendantsAppellees’ motions and dismissed Cohen’s claims. Cohen
timely appealed.
DISCUSSION
Congress has never “provide[d] a specific damages
remedy for plaintiffs whose constitutional rights were
violated by agents of the Federal Government.” Ziglar v.
Abbasi, 582 U.S. 120, 130, 137 S. Ct. 1843, 198 L. Ed. 2d
290 (2017). In 1971, however, the Supreme Court in Bivens
created an implied cause of action such that “damages may
be obtained for injuries consequent upon a violation of the
Fourth Amendment by federal officials.” 403 U.S. at 395.
The Supreme Court has only extended Bivens two times.
First, in 1979, the Supreme Court recognized a Fifth
Amendment claim for damages against a United States
Congressman for wrongful termination based on gender
discrimination. See Davis v. Passman, 442 U.S. 228,
99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979). Second, in 1980,
the Supreme Court recognized an Eighth Amendment
claim for damages against federal prison officials for
deliberate indifference to an inmate’s serious medical
needs. See Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468,
64 L. Ed. 2d 15 (1980). Since Carlson, the Supreme Court
“ha[s] declined [twelve] times to imply a similar cause of
action for other alleged constitutional violations.” Egbert
v. Boule, 596 U.S. 482, 486, 142 S. Ct. 1793, 213 L. Ed. 2d
54 (2022) (collecting cases). 3
3. The decision in Egbert was the twelfth time.
7a
Appendix A
Before a court may extend Bivens, it must “engage in
a two-step inquiry.” Hernandez v. Mesa, 140 S. Ct. 735,
743, 206 L. Ed. 2d 29 (2020). The first step requires a court
to determine “whether the request involves a claim that
arises in a ‘new context’ or involves a ‘new category of
defendants.’” Id. (quoting Corr. Servs. Corp. v. Malesko,
534 U.S. 61, 68, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001)).
We interpret “new context” broadly, and a context is
“’new’ if it is ‘different in a meaningful way from previous
Bivens cases decided by’” the Supreme Court. Id. (quoting
Ziglar, 582 U.S. at 139). If a claim arises in a new context,
the second step requires a court to determine whether
“there are ‘special factors’ indicating that the Judiciary
is at least arguably less equipped than Congress to ‘weigh
the costs and benefits of allowing a damages action to
proceed.’” Egbert, 596 U.S. at 492 (quoting Ziglar, 582
U.S. at 136). “If there is even a single reason to pause
before applying Bivens in a new context, a court may
not recognize a Bivens remedy.” Id. (internal quotation
marks and citation omitted). And “[i]f there are alternative
remedial structures in place, that alone, like any special
factor, is reason enough to limit the power of the Judiciary
to infer a new Bivens cause of action.” Id. at 493 (internal
quotation marks and citation omitted).
With those principles in mind, and after conducting
a de novo review, see Atterbury v. U.S. Marshals Serv.,
805 F.3d 398, 403 (2d Cir. 2015), we cannot infer a Bivens
cause of action for Cohen’s claims because there is reason
to hesitate before extending Bivens to this new context.
Cohen sues a former President, a former Attorney
General of the United States, FCI Otisville’s warden,
8a
Appendix A
and officers and agents of the BOP and the PTS. Cohen’s
Fourth Amendment claim involves “new categor[ies] of
defendants” that were not contemplated in Bivens. See
Egbert, 596 U.S. at 492 (internal quotation marks and
citation omitted); see also Bivens, 403 U.S. at 389 (claims
alleged against agents of the now-defunct Federal Bureau
of Narcotics). The same holds true for Cohen’s Eighth
Amendment claim against the defendants who are not
prison officials. See Carlson, 446 U.S. at 16 (claims alleged
against federal prison officials).
To the extent that Cohen contends that his Eighth
Amendment claim does not arise in a new context
because—like in Carlson—he also sues prison officials,
Cohen’s claim presents only “superficial similarities”
to Carlson, which is “not enough to support the judicial
creation of a cause of action.” Egbert, 596 U.S. at 495.
Unlike in Carlson, which involved allegations of deliberate
indifference to serious medical needs, see 446 U.S. at 16
n.1, here Cohen alleges unconstitutional conditions of
solitary confinement, see App’x at 27-28. These differences
are sufficient to conclude that Cohen’s claims arise in a
new context. See Ziglar, 582 U.S. at 147 (“[E]ven a modest
extension is still an extension.”).
Because this case involves a new context, we must
determine whether any special factors are present. We
note that there are significant separation-of-powers
concerns with extending Bivens to Cohen’s claims against
many of the instant categories of defendants, which by
itself is reason to counsel hesitation. See Ziglar, 582 U.S.
at 133-34. We need not address those concerns, however,
9a
Appendix A
because Cohen’s attempt to extend Bivens fails for an
independent and far simpler reason. Not only did Cohen
have available to him “other alternative forms of judicial
relief,” see id. at 145 (internal quotation marks and citation
omitted), he was successful in pursuing other forms of
judicial relief. Indeed, Cohen filed a petition for a writ of
habeas corpus and a motion for an emergency TRO, and
the district court issued an injunction within a matter
of days releasing Cohen from imprisonment to home
confinement. See App’x at 39-40. Under the circumstances
presented here, a successful petition for habeas relief is
sufficient to foreclose Cohen’s Bivens claims. See Ziglar,
582 U.S. at 144-45. While this relief may not have made
Cohen whole, “when alternative methods of relief are
available, a Bivens remedy usually is not.” Id. at 145.
“Nor does it matter that existing remedies do not provide
complete relief.” Egbert, 596 U.S. at 493 (emphasis added)
(internal quotation marks and citation omitted). Cohen
therefore does not have a viable claim for damages under
Bivens for the alleged violations of his Fourth and Eighth
Amendment rights.
***
We have considered all of Cohen’s remaining
arguments and find them to be without merit. Accordingly,
we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
/s/ Catherine O’Hagan Wolfe
10a
AppendixAND
B ORDER OF THE
APPENDIX B — OPINION
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK,
FILED NOVEMBER 14, 2022
UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK
21-cv-10774 (LJL)
MICHAEL COHEN,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
Filed November 14, 2022
OPINION AND ORDER
LEWIS J. LIMAN, United States District Judge:
Plaintiff Michael Cohen’s complaint centers around
allegations of serious violations of his constitutional
rights by the United States government, then-President
Donald J. Trump, then-Attorney General William Barr,
and various officers within the Federal Bureau of Prisons.
Cohen alleges—and another Court found with respect to
certain of the defendants, see infra—that the defendants
11a
Appendix B
remanded him to prison because he wanted to publish a
book critical of the then-President. He seeks redress for
the violations of his constitutional rights through this
damages action.
Cohen’s complaint and the motions to dismiss now
before this Court raise fundamental questions about the
meaning and value of constitutional rights, the relationship
between a citizen and the government, and the role of
the federal courts in protecting those rights. The ability
to publicly criticize even our most prominent politicians
and leaders without fear of retaliation is a hallmark
of American democracy; political speech is core First
Amendment speech. “[I]t is a prized American privilege
to speak one’s mind, although not always with perfect good
taste, on all public institutions.” Bridges v. California, 314
U.S. 252, 270, 62 S. Ct. 190, 86 L. Ed. 192 (1941). And it is
a further hallmark of American democracy that, where
one’s rights have been violated, one may seek to vindicate
those rights in the courts. In the oft-quoted words of Chief
Justice John Marshall: “The government of the United
States has been emphatically termed a government of
laws, and not of men. It will certainly cease to deserve
this high appellation, if the laws furnish no remedy for the
violation of a vested legal right.” Marbury v. Madison,
5 U.S. 137, 1 Cranch 137, 163, 2 L. Ed. 60 (1803). The
Court today must consider the limits of these hallmark
principles.
12a
Appendix B
BACKGROUND
The following facts are drawn from the complaint
and are taken as true for the purposes of this motion to
dismiss.
Plaintiff Michael D. Cohen (“Cohen” or “Plaintiff ”)
was formerly employed by individual defendant Donald J.
Trump (“Trump”) as his attorney and personal advisor
for over a decade. Dkt. No. 3 (“Compl.”) ¶ 48. In August
and November of 2018, Cohen pleaded guilty to various
crimes including lying to Congress and campaign
finance violations; he was sentenced to thirty-six months
of incarceration. Id. ¶¶ 4, 52-53. In May of 2019, he
voluntarily surrendered for service of his sentence at FCI
Otisville. Id. ¶ 54.
While incarcerated, Cohen began to work on a book
about his association with Trump. Id. ¶ 55. The book
chronicles the arc of his experiences with Trump and
describes how, upon reflection, he came to the realization
that his actions in furtherance of Trump’s agenda
ultimately led to his own downfall. Id. ¶ 56. Cohen publicly
spoke about his forthcoming book in ways that made
it clear that the book would be critical of and perhaps
damaging to Trump; he publicly stated that his book
would be unfavorable to Trump and would substantiate the
descriptions he gave during his congressional testimony of
Trump as “a cheat, a liar, a conman, [and] a racist,” among
other things. Id. ¶¶ 57, 59. The complaint also alleges
that Cohen was privy to years of non-public behavior
by Trump, which included witnessing anti-Semitic and
13a
Appendix B
racist remarks by him; that the book included quotes and
documentary evidence of such behavior; and that Trump
was aware that Cohen was witness to many years of such
behavior that, if made public, could damage Trump’s
reputation and his future political goals, including, at that
time, his potential run for a second term as President in
2020. Id. ¶¶ 57-58, 60.
Cohen’s incarceration in 2019 and the beginning of
2020 was uneventful. Id. ¶ 62. Upon completion of his
sentence, Cohen was to be released from FCI Otisville on
November 21, 2021. Id. ¶ 63. The onset of the COVID-19
pandemic, however, altered this. Id. ¶ 64. COVID-19
caused significant concerns for prison populations because
the virus spreads easily within the close confines of a
prison; this was particularly concerning for Cohen because
he has various health comorbidities that make him highly
susceptible to COVID-19 risks. Id. ¶¶ 64-65. Cohen
petitioned the defendants for early release from FCI
Otisville based on Congress’s passage of the Coronavirus
Aid, Relief, and Economic Security (“CARES”) Act,
Pub. L. No. 116-136, and then-Attorney General Barr’s
memoranda of March 26, 2020 and April 3, 2020. Id.
¶ 66. Cohen submitted his request to officials from the
Federal Bureau of Prisons (“FBOP”) on March 31, 2020;
the officials determined that Cohen should be released on
furlough and then transferred to home confinement. Id.
¶¶ 67-68. The FBOP granted Cohen furlough approval on
April 18, 2020; the furlough time period was from May 1,
2020 to May 31, 2020. Id. ¶ 69.
During that time period, while on furlough, Cohen
made several public statements via Twitter regarding
14a
Appendix B
the imminent publication of his book about Trump, a
number of which were accompanied by the hashtag
#WillSpeakSoon. Id. ¶ 72. Cohen planned to release his
book by late September of 2020. Id.
On July 9, 2020, in compliance with a directive by
defendant Adam Pakula, a probation officer with U.S.
Probation and Pretrial Services, Cohen reported to the
U.S. Probation Office in downtown Manhattan, along
with his attorney, in order to transition from furlough
to home confinement. Id. ¶ 73. They met with Pakula as
well as defendant Enid Febus, a supervisory probation
officer. Id. Pakula and Febus gave Cohen a Federal
Location Monitoring Program Participant Agreement
(“FLM”), which set forth conditions for Cohen’s home
confinement. Id. ¶ 74. In the first paragraph, it contained
a broad provision prohibiting Cohen from engaging with
the media in any form, including books, and from posting
on social media:
No engagement of any kind with the media,
including print, tv, film, books, or any other
form of media/news. Prohibition from all social
media platforms. No posting on social media
and a requirement that you communicate with
friends and family to exercise discretion in not
posting on your behalf or posting information
about you. The purpose is to avoid glamorizing
or bringing publicity to your status as a
sentenced inmate serving a custodial term in
the community.
15a
Appendix B
Id. ¶ 75. Cohen viewed this condition as an attempt to
chill and restrain his First Amendment rights; he also
suspected that this condition was not a standard one
in FLMs for those transferring to home confinement,
partially because he noted that the document was not
in the standard FLM form, contained grammatical and
typographical errors, and was not identified with its
federal form designation. Id. ¶¶ 76-78. He and his attorney
inquired why the paragraph was included in the FLM,
since it did not appear to be standard and would prohibit
the publication of his book. Id. ¶ 79. Febus replied—and
Pakula agreed—that that this was the standard form
used, and that Cohen was not being treated differently
than other prisoners.1 Id. ¶¶ 80-81. Cohen and/or his
attorney asked whether it would be possible to adjust
1. The complaint alleges that “[i]n a July 22, 2020 signed
declaration made under penalty of perjury and submitted to the
Court in Cohen v. Barr et al, supra, document number 23, defendant
Pakula admitted in great detail how he and defendant Febus lied
to plaintiff.” Id. ¶ 82. The declaration, however—which is referred
to and relied upon by the complaint and is thus incorporated by
reference, and which the Court can take judicial notice of the contents
of as a public record pursuant to Federal Rule of Evidence 201(b),
see Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000)—does not
contain such a broad admission. Rather, Pakula states that he drew
the FLM agreement presented to Cohen from an agreement sent
to him by a probation officer in another district as an example of an
FLM agreement used for high-profile inmates. Declaration of Adam
Pakula, Cohen v. Barr et al., 1:20-cv-05614 (S.D.N.Y. July 22, 2020),
ECF No. 23. Taking Cohen’s allegations here as true—particularly,
that Febus and Pakula told Cohen that this was the standard form
and that he was not being treated differently than other prisoners—
Pakula’s declaration does indicate that the statements made to Cohen
were not true, in that he was, at least, being treated differently than
lower-profile prisoners, and this was not the standard form used in
such cases.
16a
Appendix B
the language of the paragraph or remove it entirely; the
parties agreed to table the question so that they could “run
it up the chain of command,” and continued with reviewing
the rest of the FLM. Id. ¶¶ 84-86. Cohen was not asked at
that time or at any other point in the meeting to sign the
FLM agreement, nor did he refuse to sign the agreement,
withhold consent to electronic monitoring, or refuse any
other condition of home confinement. Id. ¶¶ 87-88.
After Cohen, his attorney, Pakula, and Febus finished
reviewing the agreement, Pakula and Febus directed
Cohen and his attorney to remain in the waiting area while
they waited for a response from their supervisors about
the first paragraph of the FLM. Id. ¶ 89. After waiting
for about an hour and half—during which time Cohen’s
attorney checked in with Pakula and Febus to see if
everything was alright, and was assured that everything
was fine and that they were just waiting for a response
from their supervisors—three United States marshals
came to the waiting area and served Cohen’s attorney
with a remand ordered by defendant Patrick McFarland
that stated that Cohen had failed to agree to the terms
of FLM and was being remanded for that reason. Id.
¶¶ 90-91. Cohen was shackled, handcuffed, and remanded
to prison. Id. ¶ 92. Cohen’s attorney explained that the
meeting had not concluded, that they were still waiting
to hear back as to what, if anything, could be adjusted,
that Cohen had not refused to agree to the terms of the
FLM, and that Cohen was prepared to sign the FLM “as
is.” Id. ¶ 95. Pakula and Febus responded that it was “out
of their hands,” and that the proposed FLM was no longer
on the table. Id. ¶ 96.
17a
Appendix B
Cohen was t ranspor t ed t o the Met ropol it an
Correctional Center (“MCC”) in Manhattan and then
transported back to FCI Otisville, where he was placed
in a special segregated housing unit and then transferred
to solitary confinement for sixteen days. Id. ¶¶ 98-100.
While in solitary confinement, he spent all but thirty
minutes of his day alone in a twelve by eight-foot cell with
poor ventilation, no air conditioning, and temperatures
frequently over one hundred degrees. Id. ¶¶ 101-102.
These conditions caused health problems for Cohen;
his blood pressure was elevated, resulting in severe
headaches, shortness of breath, and anxiety, which
required immediate medical attention. Id. ¶ 102. While
incarcerated, Cohen was unable to proceed with drafting
his book and was unable to make any public statements.
Id. ¶ 103.
Cohen filed a habeas petition against Barr, Michael
Carvajal, in his official capacity as Director of the FBOP,
and James Petrucci, in his official capacity as Warden
of FCI Otisville, challenging his incarceration on July
20, 2020, eleven days after having been remanded.
On July 23, 2020, Judge Hellerstein issued an order
granting Cohen’s motion for a preliminary injunction
directing these defendants to release Cohen to home
confinement. Id. ¶ 108. Judge Hellerstein found that the
defendants’ “purpose in transferring Cohen from release
on furlough and home confinement back to custody was
retaliatory in response to Cohen desiring to exercise his
First Amendment rights to publish a book critical of the
President and to discuss the book on social media.” Cohen
v. Barr, 2020 U.S. Dist. LEXIS 132817, 2020 WL 4250342,
18a
Appendix B
at *1 (S.D.N.Y. July 23, 2020). Cohen had spent two weeks
either in the special segregated housing unit or in solitary
confinement. Compl. ¶ 27.
Cohen filed the complaint in this case on December
17, 2021. See generally id. The complaint names as
defendants: (i) the United States of America, (ii) former
President Trump, (iii) former Attorney General Barr, (iv)
Director of the FBOP Carvajal, (v) Administrator of the
Residential Reentry Management Branch of the FBOP
Jon Gustin, (vi) Residential Reentry Manager of the
FBOP McFarland, (vii) Warden of FCI Otisville Petrucci,
(viii) Supervisory Probation Officer Febus, (ix) Probation
Officer Pakula, and (x) John and Jane Doe (1-10) agents,
servants, and employees of the United States.
The United States and the individual defendants with
the exception of Trump filed a joint motion to dismiss on
March 31, 2022; Trump filed a separate motion to dismiss
the same day. Dkt. Nos. 39, 41. Cohen filed oppositions
to the motions on May 27, 2022. Dkt. Nos. 59, 61. The
defendants filed replies on June 17, 2022. Dkt. Nos. 67, 68.
The Court held oral argument on the motions on August
2, 2022.
DISCUSSION
Cohen’s complaint asserts seven causes of action.
Broadly, they can be grouped into two categories. First,
Cohen brings claims against all the individual defendants,
including Trump, for violations of his First, Fourth, and
Eighth Amendment rights; the claims are brought under
19a
Appendix B
a Bivens cause of action. See Compl. ¶¶ 139-142. Second,
Cohen brings claims against the United States for (i)
retaliation; (ii) false arrest, false imprisonment, and abuse
of authority and process; (iii) negligent failure to protect;
(iv) negligent infliction of emotional distress; (v) intentional
infliction of emotional distress; and (vi) negligent hiring,
retention, training, and supervision. See Compl. ¶¶ 111138. These claims are all brought under the Federal Tort
Claims Act (“FTCA”).
The Court turns first to the Bivens claims brought
against all the individual defendants and then considers
the FTCA claims against the United States.
I.
Cohen’s Bivens Claims
The seventh cause of action in the complaint—the
only one brought against the individual defendants—is
brought as a Bivens cause of action for violations of Cohen’s
First, Fourth, and Eight Amendment rights, and alleges
that defendants intentionally retaliated against Cohen
by remanding him to prison for exercising his right to
free speech, in violation of his First Amendment rights;
committed an unlawful seizure in so doing, in violation
of his Fourth Amendment rights; and placed him in
dangerous solitary confinement conditions, in violation
of his Eighth Amendment rights. Compl. ¶¶ 139-142. All
of the individual defendants move to dismiss this count.
They do not dispute that Cohen’s constitutional rights
were violated and that he suffered injury as a result.
They instead argue that the Bivens cause of action is not
available for Cohen’s claims. See Dkt. No. 40 at 20; Dkt.
No. 42 at 10.
20a
Appendix B
The Supreme Court has held that whether a Bivens
cause of action is available is an “antecedent issue” to
whether a plaintiff has alleged a violation of a clearly
established constitutional right. See Wood v. Moss, 572
U.S. 744, 757, 134 S. Ct. 2056, 188 L. Ed. 2d 1039 (2014);
see also Hernandez v. Mesa, 137 S. Ct. 2003, 2006, 198
L. Ed. 2d 625 (2017) (“The Court turns first to the Bivens
question, which is ‘antecedent’ to the other questions
presented.” (quoting Wood, 572 U.S. at 757)). At this
stage, therefore, the question before this Court is simple:
Assuming, in the first instance, that Cohen has sufficiently
alleged that federal officials violated his constitutional
rights, is there a judicial mechanism through which he can
vindicate those rights and seek to recover for the harm
he suffered from those who harmed him? It is a question
that, here, is strengthened by the fact that—with regard
to Cohen’s First Amendment claim—another court in this
District has already found Cohen’s constitutional rights
were violated. The question thus becomes whether the
Constitution and the courts afford Cohen a forum in which
to seek relief for the injury he suffered as a result of that
violation. It is a question that, in 1803—“The very essence
of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever
he receives an injury,” Marbury, 1 Cranch at 163—or in
1971—“Historically, damages have been regarded as the
ordinary remedy for an invasion of personal interests in
liberty,” Bivens v. Six Unknown Named Agents of the
Fed. Bureau of Narcotics, 403 U.S. 388, 395, 91 S. Ct.
1999, 29 L. Ed. 2d 619 (1971)—likely would have been
answered in the affirmative. His claim would have been
entertained either in state or in federal court. It is a
21a
Appendix B
question to which the answer seems intuitive; what, after
all, is the value of a right if one has no recourse when that
right is violated? But it is also a question that the Supreme
Court has unequivocally answered in the negative. The
Court is bound by that ruling. See State Oil Co. v. Khan,
522 U.S. 3, 20, 118 S. Ct. 275, 139 L. Ed. 2d 199 (1997)
(“[I]t is this Court’s prerogative alone to overrule one of
its precedents.”).
In 1971, in Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, the Supreme Court
squarely considered this question for the first time, in
the Fourth Amendment context; as it put it, the question
before the Court was “merely whether petitioner, if he can
demonstrate an injury consequent upon the violation by
federal agents of his Fourth Amendment rights, is entitled
to redress his injury through a particular remedial
mechanism normally available in the federal courts.” 403
U.S. at 397. In Bivens, the petitioner, Webster Bivens,
alleged that agents of the now-defunct Federal Bureau
of Narcotics violated his Fourth Amendment rights by
entering his apartment, searching it, and arresting him,
all without a warrant and with unreasonable force. Id.
at 389. The Court concluded that Bivens was entitled
to redress his alleged constitutional injury through the
mechanism of a damages suit against the federal officers.
Justice Brennan, writing for the majority, noted: “That
damages may be obtained for injuries consequent upon
a violation of the Fourth Amendment by federal officials
should hardly seem a surprising proposition.” Id. at 395.
After looking to Marbury, the Court held that “petitioner
is entitled to recover money damages for any injuries
22a
Appendix B
he has suffered as a result of the agents’ violation of the
Amendment.” Id. at 397.
After Bivens, the Supreme Court twice extended
the implied cause of action to other constitutional rights:
In Davis v. Passman, the Court expanded the Bivens
action to sex discrimination under the due process
clause of the Fifth Amendment, 442 U.S. 228, 99 S. Ct.
2264, 60 L. Ed. 2d 846 (1979), and in Carlson v. Green,
the Court expanded the Bivens action to a violation of
Eight Amendment rights in a federal prison, 446 U.S. 14,
100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980). In each of these
cases, the Court treated the expansion of Bivens as the
straightforward application of settled law and settled
constitutional principles.
In the era after Bivens, Passman, and Carlson,
however, the Court’s jurisprudence markedly shifted. By
2001, in Correctional Services Corp. v. Malesko, the Court
recognized that it had “consistently refused to extend
Bivens liability to any new context or new category of
defendants.” 534 U.S. 61, 68, 122 S. Ct. 515, 151 L. Ed. 2d
456 (2001).
This shift has frequently been explained in context of
the broader shift in the Court’s approach towards implying
damages remedies for statutory violations. Bivens was
decided in an era in which the Court took an expansive
view of the ability of the courts to fashion a remedy to
persons injured as a result of a violation of a congressional
statute. See, e.g., J. I. Case Co. v. Borak, 377 U.S. 426, 84
S. Ct. 1555, 12 L. Ed. 2d 423 (1964) (“While this language
23a
Appendix B
makes no specific reference to a private right of action,
among its chief purposes is ‘the protection of investors,’
which certainly implies the availability of judicial relief
where necessary to achieve that result.”). The Court later
retreated from that view, instead believing that “[l]ike
substantive federal law itself, private rights of action to
enforce federal law must be created by Congress,” and that
“[t]he judicial task” is not to give effect to the statute’s
purpose but rather “to interpret the statute Congress
has passed to determine whether it displays an intent to
create not just a private right but also a private remedy.”
Alexander v. Sandoval, 532 U.S. 275, 286, 121 S. Ct. 1511,
149 L. Ed. 2d 517 (2001). Indeed, this contextualization of
the Court’s newfound hostility towards the Bivens cause of
action has repeatedly been professed by the Court itself:
“Bivens is a relic of the heady days in which this Court
assumed common-law powers to create causes of action—
decreeing them to be ‘implied’ by the mere existence of a
statutory or constitutional provision.” Malesko, 534 U.S.
at 75 (Scalia, J., concurring).
In Ziglar v. Abbasi, against the backdrop of the
September 11 terrorist attacks, the Court again
considered the availability—and continued force—of the
Bivens cause of action. 582 U.S. 120, 137 S. Ct. 1843, 198
L. Ed. 2d 290 (2017). The Court emphasized that Bivens
and its progeny were part of an “ancien regime” in which
“the Court followed a different approach to recognizing
implied causes of action than it follows now.” Id. at 1855.
Under the new approach, “the Court adopted a far more
cautious course before finding implied causes of action,”
and “clarified . . . that, when deciding whether to recognize
24a
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an implied cause of action, the ‘determinative’ question is
one of statutory intent.” Id. at 1855-56. The Ziglar Court
did recognize that “[t]he decision to recognize an implied
cause of action under a statute involves somewhat different
considerations than when the question is whether to
recognize an implied cause of action to enforce a provision
of the Constitution itself.” Id. at 1856. The Court failed,
however, to give significant meaning to that distinction,
recounting that “the Court’s expressed caution as to
implied causes of actions under congressional statutes
led to similar caution with respect to actions in the
Bivens context, where the action is implied to enforce
the Constitution itself.” Id. Noting that “expanding the
Bivens remedy is now a ‘disfavored’ judicial activity,” id.
at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129
S. Ct. 1937, 173 L. Ed. 2d 868 (2009)), the Court clarified
the somewhat piecemeal Bivens jurisprudence into a
cohesive—and narrow—two-step test, which first asks “[i]
f the case is different in a meaningful way from previous
Bivens cases decided by this Court,” meaning that it
presents a new context, id. at 1859, and then asks if there
are “special factors counselling hesitation in the absence
of affirmative action by Congress,” in which case a court
should decline to extend Bivens, id. at 1857.
Hernandez v. Mesa, the next significant Bivens case
confronted by the Court, followed the reasoning and
analysis of Ziglar. Again distinguishing Bivens, Passman,
and Carlson as “the products of an era when the Court
routinely inferred ‘causes of action’ that were ‘not explicit’
in the text of the provision that was allegedly violated,”
but from which the Court has now retreated as it “came
25a
Appendix B
to appreciate more fully the tension between this practice
and the Constitution’s separation of legislative and judicial
power,” the Court declined to extend a Bivens cause of
action to a lawsuit brought under the Fourth Amendment
by the family of Sergio Hernandez, a fifteen-year-old
Mexican citizen who was shot and killed by a U.S. border
patrol agent, allegedly without provocation. 140 S. Ct. 735,
741, 206 L. Ed. 2d 29 (2020). The Hernandez Court applied
the same “twostep inquiry” articulated in Ziglar, asking
first “whether the request involves a claim that arises in
a new context or involves a new category of defendants,”
with “new context” understood to mean any context that
“is different in a meaningful way from previous Bivens
cases decided by this Court,” and then, if a claim arises in a
new context, asking “whether there are any special factors
that counsel hesitation about granting the extension.” Id.
at 743 (internal quotation marks and citations omitted).
Finally, and most recently, in Egbert v. Boule, the
Supreme Court considered the availability of a Bivens
cause of action for a First Amendment retaliation claim
and a Fourth Amendment excessive force claim. Rejecting
both claims, the Court stated that “our cases have made
clear that, in all but the most unusual circumstances,
prescribing a cause of action is a job for Congress, not
the courts.” 142 S. Ct. 1793, 1800, 213 L. Ed. 2d 54
(2022). The Court provided an even narrower test than
that articulated in Ziglar and Hernandez—“[w]hile our
cases describe two steps, those steps often resolve to a
single question: whether there is any reason to think that
Congress might be better equipped to create a damages
remedy.” Id. at 1803.
26a
Appendix B
Explaining that test, the Egbert Court made clear
that, effectively, it operates as a bar to a Bivens claim in
all cases except, perhaps, those involving Fourth, Fifth
and Eighth Amendment claims factually indistinguishable
from Bivens, Passman, or Carlson. In an all-encompassing
articulation of the special factors inquiry, the Court
majority stated that “[e]ven in a particular case, a court
likely cannot predict the ‘systemwide’ consequences
of recognizing a cause of action under Bivens. That
uncertainty alone is a special factor that forecloses
relief.” Id. at 1804. And claims that paralleled Bivens,
Passman, or Carlson exactly could also be foreclosed:
“Even assuming the factual parallels [to Passman] are
as close as Boule claims, Passman carries little weight
because it predates our current approach to implied causes
of action and diverges from the prevailing framework
in three important ways.” Id. at 1808. Departing from
Ziglar’s assurance that “this opinion is not intended to
cast doubt on the continued force, or even the necessity,
of Bivens in the search-and-seizure context in which it
arose,” 137 S. Ct. at 1856, Egbert held that where a case
is directly parallel to Bivens, Passman, or Carlson,
even that is insufficient, because those cases do not align
with the Court’s current approach to Bivens; “a plaintiff
cannot justify a Bivens extension based on ‘parallel
circumstances’ with Bivens, Passman, or Carlson unless
he also satisfies the ‘analytic framework’ prescribed by
the last four decades of intervening case law,” 142 S. Ct.
at 1809. Concluding, the Court all but held that no case
would ever be able to satisfy that analytic framework,
because “if we were called to decide Bivens today, we
would decline to discover any implied causes of action in
the Constitution.” Id. at 1809.
27a
Appendix B
Applying those principles to the First Amendment
claim before it, and in keeping with its sweeping rejection
of Bivens, the Egbert Court went beyond merely holding
that a damages cause of action should not be extended
to the particular facts of the case before it; seemingly
rejecting the fact-specific inquiry set forth in its prior
Bivens jurisprudence, it categorically held that “there is
no Bivens action for First Amendment retaliation.” Id.
at 1807.
That holding squarely forecloses Cohen’s First
Amendment retaliation claim here. And the Court’s
broader Bivens jurisprudence forecloses his Fourth
Amendment claim as well; there is no question that it
is factually distinct from the Fourth Amendment claim
implied in Bivens. The federal officers at issue in Bivens
were members of the Federal Bureau of Narcotics, while
the federal officers named as individual defendants in
Cohen’s complaint are members of the Bureau of Prisons,
in addition to the former President and former Attorney
General. Under the Court’s current jurisprudence, this
distinction alone appears to be enough to create a new
context because one of the oft-quoted examples of a
“new context” is a case that involves a “new category of
defendants.” Malesko, 534 U.S. at 68; see Egbert, 142 S. Ct.
at 1803; Ziglar, 137 S. Ct. at 1876. Nor were the Bureau of
Prisons officers performing functions “in the common and
recurrent sphere of law enforcement,” as in Bivens, see
Ziglar, 137 S. Ct. at 1857; rather, they were effectuating
a remand of a federal prisoner who had already been
sentenced to a term of incarceration.
28a
Appendix B
Likewise, Cohen’s Eighth Amendment claim arises in
a new context. In Carlson, the Eighth Amendment claim
centered on grossly inadequate medical care provided
to an inmate during a severe asthma attack. 446 U.S. at
16 n.1. Cohen’s Eighth Amendment claim centers on the
conditions of his solitary confinement, which—although he
claims “posed serious health risks”—did not result in him
receiving inadequate medical care. Compl. ¶ 102. To the
contrary, the complaint states that the conditions resulted
in Cohen’s “blood pressure bec[oming] dangerously high
resulting in severe headaches, shortness of breath, and
anxiety requiring immediate medical attention,” implying,
if anything, that “immediate medical attention” was
provided to him. Id. Cohen’s claim asserts a somewhat
different “mechanism of injury” (conditions of confinement
as opposed to deliberate indifference to medical needs) and
thus presents a new context under the Supreme Court’s
precedents. Egbert, 142 S. Ct. at 1805 (quoting Ziglar,
137 S. Ct. at 1859); see, e.g., Mammana v. Barben, 856
F. App’x 411 (3d Cir. 2021) (mem.) (holding that Eight
Amendment claim based on conditions of “confinement
in a chilled room with constant lighting, no bedding, and
only paper-like clothing” bore little resemblance to the
facts in Carlson); Schwarz v. Meinberg, 761 F. App’x 732
(9th Cir. 2019) (mem.) (holding that Eighth Amendment
claim based on unsanitary cell conditions presented a new
context). While these contexts are undoubtedly similar,
the Supreme Court has counseled that “even a modest
extension [of Bivens liability] is still an extension.” Ziglar,
137 S. Ct. at 1864.
Because Cohen’s claims arise in a new context, the
next question is whether there are “special factors” which
29a
Appendix B
the Supreme Court has stated indicate “that the Judiciary
is at least arguably less equipped than Congress to ‘weigh
the costs and benefits of allowing a damages action
to proceed’” and thus further prevent the Court from
recognizing a Bivens remedy. Egbert, 142 S. Ct. at 1803
(quoting Ziglar, 137 S. Ct. at 1858). The Supreme Court
has stated that “[i]f there is even a single ‘reason to pause
before applying Bivens in a new context,’ a court may not
recognize a Bivens remedy,” id. (quoting Hernandez, 140
S. Ct. at 743), and where there are “alternative remedial
structures in place, ‘that alone,’ like any special factor, is
reason enough to ‘limit the power of the Judiciary to infer
a new Bivens cause of action,’” id. at 1804 (quoting Ziglar,
137 S. Ct. at 1858). It does not matter if those existing
remedial structures “do not provide complete relief ” or
are “not as effective as an individual damages remedy.”
Id. (quoting Bush v. Lucas, 462 U.S. 367, 372, 388, 103
S. Ct. 2404, 76 L. Ed. 2d 648 (1983)).
In this case, defendants point to two remedial
structures that they argue preclude this Court from
recognizing a Bivens remedy for Cohen: (i) the FBOP’s
Administrative Remedy Program and (ii) a writ of habeas
corpus. Dkt. No. 40 at 27-29. Cohen does not contest that
he had these remedial structures available to him; to the
contrary, he admits that he availed himself of the latter
option. See Oral Argument Tr. at 56 (“Again, one thing
about the habeas relief. My client was freed because of the
habeas relief. That stopped the bleeding, your Honor.”).
While the Supreme Court has held that the FBOP’s
Administrative Remedy Program is an alternative
30a
Appendix B
remedial structure sufficient to preclude Bivens liability
in prior cases, see, e.g., Malesko, 534 U.S. at 74 (declining
to find Bivens remedy where “[i]nmates in respondent’s
position [ ] have full access to remedial mechanisms
established by the BOP, including suits in federal court for
injunctive relief and grievances filed through the BOP’s
Administrative Remedy Program”), this Court is reluctant
to find—assuming that Cohen’s allegations are true as it
must at this stage—that Cohen could have successfully
remedied the alleged constitutional violations in such a
forum. Cohen alleges in his complaint that senior FBOP
officials, including the Director of the FBOP and the
Warden of FCI Otisville, effectively acted at the behest of
President Trump in committing the various Constitutional
violations alleged. See, e.g., Compl. ¶ 39. Yet, it is precisely
these senior FBOP officials who exercise control over
the Administrative Remedy Program: Complaints are
made to the Warden and are appealed to the General
Counsel who appears to report up to the Director of the
FBOP. 2 If Cohen’s allegations are thus proved, it is hard
to imagine that the same individuals who committed the
constitutional violations against Cohen would, in any
meaningful sense, provide a remedy for those violations.
2. See Administrative Remedy Program, FBOP (Jan. 6,
2014), https://www.bop.gov/policy/progstat/1330_018.pdf; FBOP—
Administrative Remedy Program, D.C. Corrections Information
Counsel, https://cic.dc.gov/sites/default/files/dc/sites/cic/page_
content/attachments/BOP%20Administrative%20Remedies%20
11.15.17%20REVISED.pdf (last visited Nov. 11, 2022); Experienced
Leadership, FBOP, https://www.bop.gov/about/agency/leadership.
jsp (last visited Nov. 11, 2022).
31a
Appendix B
Defendants’ argument that Cohen had an alternative
remedial structure through a writ of habeas corpus is
more persuasive. See Ziglar, 137 S. Ct. at 1865 (“And there
might have been alternative remedies available here, for
example, a writ of habeas corpus.”); Rodriguez v. Easter,
2022 U.S. Dist. LEXIS 21126, 2022 WL 356478, at *6 (D.
Conn. Feb. 7, 2022) (“[C]ourts that have applied the Ziglar
analysis to a claim of First Amendment retaliation by
an inmate have noted the existing alternative remedial
structures, including the BOP administrative grievance
process and writ of habeas corpus.”). While the Supreme
Court has left open the availability of habeas relief for
federal prisoners challenging the conditions of their
confinement (as Cohen does here), see Ziglar, 137 S. Ct. at
1862-63 (“[W]e have left open the question whether they
might be able to challenge their confinement conditions
via a petition for a writ of habeas corpus.”); Bell v. Wolfish,
441 U.S. 520, 527, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979)
(leaving “to another day the question of the propriety
of using a writ of habeas corpus to obtain review of the
conditions of confinement, as distinct from the fact or
length of the confinement itself ”), the Second Circuit has
held that prisoners in federal custody may seek habeas
relief related to the conditions of their confinement under
28 U.S.C. § 2241, see Thompson v. Choinski, 525 F.3d 205,
209 (2d Cir. 2008) (“This court has long interpreted § 2241
as applying to challenges to the execution of a federal
sentence, ‘including such matters as the administration
of parole, . . . prison disciplinary actions, prison transfers,
type of detention and prison conditions.’”); Roba v. United
States, 604 F.2d 215, 219 (2d Cir. 1979) (“At that point
petitioner’s challenge to his transfer while seriously ill
32a
Appendix B
would be a challenge to the conditions of his confinement,
for which habeas corpus relief under § 2241 would be
available.”); Elleby v. Smith, 2020 U.S. Dist. LEXIS
90464, 2020 WL 2611921, at *2 (S.D.N.Y. May 22, 2020)
(“[T]he Second Circuit has held that both habeas petitions,
at least for prisoners in federal custody . . . may address
conditions of confinement and seek the remedy of transfer
(e.g., to a different prison population or facility).”); Ilina
v. Zickefoose, 591 F. Supp. 2d 145, 146-49 (D. Conn.
2008) (describing § 2241 as a “broad remedy available
to federal prisoners challenging the conditions of their
confinement”). That Cohen could successfully avail himself
of habeas relief is borne out by the fact that he was able
to do so in this case.
Cohen also likely could have sought relief through the
right of federal courts to enjoin unconstitutional actions
by state and federal officers. “Availability of federal
equitable relief to remedy constitutional violations has
been presumed by the courts,” Jensen v. Farrell Lines,
Inc., 625 F.2d 379, 383 (2d Cir. 1980), and “it is established
practice . . . to sustain the jurisdiction of federal courts
to issue injunctions to protect rights safeguarded by
the Constitution,” Free Enter. Fund v. Pub. Co. Acct.
Oversight Bd., 561 U.S. 477, 491 n.2, 130 S. Ct. 3138, 177
L. Ed. 2d 706 (2010) (quoting Bell v. Hood, 327 U.S. 678,
684, 66 S. Ct. 773, 90 L. Ed. 939 (1946)); see Armstrong v.
Exceptional Child Ctr., Inc., 575 U.S. 320, 337, 135 S. Ct.
1378, 191 L. Ed. 2d 471 (2015) (Sotomayor, J., concurring)
(“That parties may call upon the federal courts to enjoin
unconstitutional government action is not subject to
serious dispute.”); see also Stephen I. Vladeck, Douglas
33a
Appendix B
and the Fate of Ex Parte Young, Yale L.J. (Forum) (Apr. 30,
2012) (“Whether or not Ex parte Young itself articulated
this rule, it is now generally understood that injunctive
relief for constitutional violations does not require a
freestanding statutory cause of action (and instead arises
under the relevant constitutional provision).”). As the
Supreme Court stated in Armstrong, the “ability to sue
to enjoin unconstitutional actions by state and federal
officers is the creation of courts of equity, and reflects a
long history of judicial review of illegal executive action,
tracing back to England.” 575 U.S. at 327. Thus, even if
habeas relief were not available, a citizen imprisoned by
the President to prevent him from expressing critical
views of that President on the eve of an election is not
without remedy. Cohen—and if there ever are any others
similarly situated—could have sought an injunction for
defendants’ violations of the Constitution. See Ojo v.
United States, 364 F. Supp. 3d 163, 174 (E.D.N.Y. 2019)
(finding “there were alternative channels that plaintiff
could have pursued” including “injunctive or declaratory
relief to challenge and seek alterations to the BOP Policy
affecting the provision of dental care.”); see also Malesko,
534 U.S. at 74 (“And unlike the Bivens remedy, which we
have never considered a proper vehicle for altering an
entity’s policy, injunctive relief has long been recognized
as the proper means for preventing entities from acting
unconstitutionally.”).
It is worth noting that these alternative remedial
structures are hardly adequate replacements for a suit
for monetary damages. These alternative remedies
would not compensate Cohen for or address the harms
34a
Appendix B
Cohen had already suffered prior to the issuance of the
injunction. While Cohen would have been able to enjoin the
defendants, as he did in this case, “a prospective injunction”
does not “normally provide plaintiffs with redress for
harms they have already suffered.” Ziglar, 137 S. Ct. at
1879. Moreover, those avenues for prospective relief do
not eliminate the deterrent effect that imprisonment (in
solitary confinement) can have on all but the most intrepid.
And, while Bivens is “concerned solely with deterring
the unconstitutional acts of individual officers,” Egbert,
142 S. Ct. at 1806 (quoting Malesko, 534 U.S. at 71), the
injunctive relief that Cohen was awarded in his prior
case in front of Judge Hellerstein does little to deter the
unconstitutional acts of the defendants. An injunction is
primarily focused on stopping an unconstitutional violation
from occurring on an ongoing basis. It does not seek to
punish someone for what they have done and thus, in turn,
deter that person from committing similar wrongs in the
future. See SEC & Exch. Comm’n v. Stubos, 2022 U.S. Dist.
LEXIS 185774, 2022 WL 6776741, at *10 (S.D.N.Y. Oct.
11, 2022) (“Injunctive remedies, as discussed, are tailored
to deter future violations of law by that individual; not to
punish the defendant and, through that punishment, send
a message to those in the community not to do similar bad
acts.”). Nevertheless, the Supreme Court has instructed
that it does not matter whether the existing remedies
provide “complete relief ” or appear inadequate. Egbert,
142 S. Ct. at 1804 (citation omitted). These difficult issues
merit, and will no doubt receive, further consideration in
the future, if not in this case.
As things currently stand, however, the Supreme
Court’s precedents squarely and unequivocally foreclose
35a
Appendix B
the Bivens claims here. None of the claims present a direct
parallel to Bivens, Passman, or Carlson; even if one did,
the Egbert Court has thrown into doubt the availability of
the Bivens cause of action for any new claim, particularly
where, as here, alternative remedial structures are in
place.
As such, Cohen’s Bivens claims must be dismissed.
Before doing so, however, this Court pauses to reiterate
the profound violence this holding does to Cohen’s
constitutional rights. Cohen’s complaint alleges an
egregious violation of constitutional rights by the executive
branch—nothing short of the use of executive power to
lock up the President’s political enemies for speaking
critically of him. The Supreme Court’s precedents ensure
that there is at best a partial remedy for the abuse of
power and violation of rights against the perpetrators of
those wrongs. And those precedents rest on a mistaken
proposition—that the Court’s reluctance to imply a
damages remedy for statutorily created rights where
Congress did not explicitly intend for there to be such a
remedy necessarily must extend to a reluctance to find
such a remedy for constitutionally guaranteed rights.
As Justice Harlan articulated in Bivens, “[I]t must
also be recognized that the Bill of Rights is particularly
intended to vindicate the interests of the individual in
the face of the popular will as expressed in legislative
majorities.” 403 U.S. at 407 (Harlan, J., concurring). The
notion that, for there to be any remedy for such a right, it
must be explicitly provided for by one of the very branches
of government from whom the right is designed to protect
the individual is particularly insidious. And it does not
36a
Appendix B
logically follow from the Court’s decisions in the statutory
realm. The parallel to a jurisprudential shift towards
looking to express congressional intent 3 in deciding
whether to recognize an implied cause of action for a right
conferred by Congress is emphatically not looking towards
congressional intent in deciding whether to recognize
an implied cause of action for a right conferred by the
Constitution itself. Unlike statutory rights, constitutional
rights do not stem from Congress; there is no reason
why the remedies for such rights must then stem from
Congress, and much reason to think that they need not.4
3. See Steven I. Vladeck, Bivens Remedies and the Myth of the
“Heady Days,” 8 U. St. Thomas L.J. 513, 521-22 (2011) (“Whatever the
merits of Sandoval’s approach, it is worth emphasizing that the crux
of the dispute between the majority and the dissenters—and between
more recent and older case law—boils down to methodological
disagreements over statutory interpretation. There is simply no
dispute today that congressional intent is dispositive when it comes
to the existence of a private cause of action to enforce a federal
statute. . . . ”).
4. See George D. Brown, Letting Statutory Tails Wag
Constitutional Dogs—Have the Bivens Dissenters Prevailed?,
64 Ind. L.J. 263, 265 (1989) (“One may agree with the Court’s
reservations about judicial lawmaking, its concern for the doctrine
of separation of powers and its general views about the superior
institutional competence of Congress. These positions . . . should
not be determinative in the Bivens context. The basic question is
availability of judicial relief for constitutional violations. In the
recent cases the statutory tail comes to wag the constitutional dog.
That is, the Court’s emphasis on the statutory component of the
remedial issues tends to obscure and downgrade their constitutional
dimension. It is as if the whole problem involved only the judiciary’s
role in an article I legislative scheme. Yet the Bivens doctrine deals
with judicial enforcement of rights whose origin is outside of, and
hierarchically superior to, any statute.”).
37a
Appendix B
This is the precise distinction that the Supreme Court
recognized, but failed to give meaning to, in Ziglar: “The
decision to recognize an implied cause of action under a
statute implies somewhat different considerations than
when the question is whether to recognize an implied
cause of action to enforce a provision of the Constitution
itself.” 137 S. Ct. at 1856. Rather, a proper inquiry—one
parallel to that articulated in Sandoval, one still removed
from the “heady days” where the Court looked to whether
it believed a damages remedy should normatively be
available for a particular right, and one that would honor
the important distinction between rights conferred
by a legislative majority and rights conferred by the
Constitution—would look to whether the framers—in
the language they used, the structure of the government
they established, the limitations they intended to place
on executive power, and the authority they gave to the
federal courts—intended for there to be such a remedy.
There are powerful reasons to believe that, in many
circumstances, the answer to that question will be
yes, 5 reasons that are not easily brushed aside with the
5. See, e.g., Walter Dellinger, Of Rights and Remedies: The
Constitution as a Sword, 85 Harv. L. Rev. 1532, 1542 (1972) (“Given
a common law background in which courts created damage remedies
as a matter of course, it is not unreasonable to presume that the
judicial power would encompass such an undertaking on the part of
the federal courts, unless there were some contrary indication that
the judicial implementation of such a remedy was not to be a part
of the article III judicial power. While with one exception prior to
Bivens, the Court has never explicitly exercised the judicial power
to create a damage remedy in a case arising under the Constitution,
its power to do so would seem rather easily established.”).
38a
Appendix B
Supreme Court’s rejection of Marbury’s promise—drawn
from English common law, see Marbury, 1 Cranch at 163
(quoting Blackstone’s commentaries)—that, if one’s rights
are violated by executive officials, the courts provide a
legal remedy for that violation.
*
*
*
For the foregoing reasons, the complaint’s claims
against all the individual defendants, brought under the
Bivens cause of action, are dismissed.6
6. Defendant Trump also moves to dismiss the claims against
him for the independent reason that they are barred by presidential
immunity. Because the claims against Trump are dismissed along
with the claims against the other individual defendants, the Court
need not address his claimed immunity here. Nonetheless, it is
worth noting—and rejecting—Trump’s argument that, effectively,
a president may never be subject to a damages suit for violations of
constitutional rights because “[i]t is blackletter law that a president
is entitled to absolute immunity for acts taken within the scope of
his official duties,” Dkt. No. 42 at 1 (quoting Nixon v. Fitzgerald,
457 U.S. 731, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982)), and Bivens
claims—if available at all—are available only for actions taken by the
official “under color of his authority,” Bivens, 403 U.S. at 389. Trump
reasons that “[s]ince a president is entitled to absolute immunity for
‘acts within the outer perimeter of his official capacity,’ it follows
that a Bivens claim—which must arise from an act performed
‘under color of his authority’—cannot be maintained against a
[p]resident.” Dkt. No 42 at 3. But the language of these two doctrines
is not the same, and there is no reason to assume that the one wholly
subsumes the other. For an official’s actions to be “under color of
authority,” “the conduct must be ‘cloaked with official power and
the official must purport to be acting under color of official right.’”
Mueller v. Gallina, 137 F. App’x 847, 850 (6th Cir. 2005) (mem.)
(internal quotation marks omitted and alterations adopted) (quoting
39a
Appendix B
II. Cohen’s FTCA Claims
Cohen’s remaining causes of action—all brought
against the United States—are brought under the
FTCA. Cohen asserts claims for retaliation under New
York common law; false arrest, false imprisonment, and
abuse of authority and process under New York common
law; negligent failure to protect under 18 U.S.C. § 4042;
negligent infliction of emotional distress under New York
common law; intentional infliction of emotional distress
under New York common law; and negligent hiring,
retention, training, and supervision under New York
common law. The United States moves to dismiss all of
Cohen’s FTCA claims.
“The United States, as sovereign, is immune from
suit save as it consents to be sued, . . . and the terms of
its consent to be sued in any court define that court’s
jurisdiction to entertain the suit.” United States v.
Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 63 L. Ed. 2d
607 (1980) (internal quotation marks omitted) (quoting
United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767,
85 L. Ed. 1058 (1941)). “‘The FTCA, 28 U.S.C. §§ 1346(b),
2401(b), and 2671-2680, constitutes a limited waiver by
Browning v. Clinton, 292 F.3d 235, 250, 352 U.S. App. D.C. 4 (D.C.
Cir. 2002)). One could imagine a situation, for example, in which the
President ordered Secret Service to kidnap his political opponent
a few weeks before an election—asserting, all the while, that he
was doing so in an exercise of executive authority. Such an action
could be taken under color of authority, while at the same time not
legitimately within the president’s official capacity, and thus not
subject to presidential immunity.
40a
Appendix B
the United States of its sovereign immunity’ and allows
for tort suits against the United States under specified
circumstances.” Hamm v. United States, 483 F.3d 135,
137 (2d Cir. 2007) (quoting Millares Guiraldes de Tineo v.
United States, 137 F.3d 715, 719 (2d Cir. 1998)). “Under the
FTCA, a private citizen may sue for injuries caused by ‘the
negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office
or employment, under circumstances where the United
States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or
omission occurred.’” Id. (quoting 28 U.S.C. § 1346(b)). The
FTCA waives sovereign immunity for claims that are:
[1] against the United States, [2] for money
damages, . . . [3] for injury or loss of property,
or personal injury or death [4] caused by the
negligent or wrongful act or omission of any
employee of the Government [5] while acting
within the scope of his office or employment,
[6] under circumstances where the United
States, if a private person, would be liable to
the claimant in accordance with the law of the
place where the act or omission occurred.
Id. (quoting FDIC v. Meyer, 510 U.S. 471, 477, 114 S. Ct.
996, 127 L. Ed. 2d 308 (1994)). The “source of substantive
liability under the FTCA” is “law of the State.” FDIC, 510
U.S. at 478.
Cohen’s first FTCA claim is a claim for “retaliation,”
for “the exercising of his right to free speech,” which
41a
Appendix B
he asserts is “a tort under the laws of the state of New
York.” In defending the claim in his opposition to the
United States’ motion to dismiss, however, Cohen makes
it clear that the only substantive source of this claim is
the First Amendment. See Dkt. No. 59 at 27 (concluding
that “defendants did imprison Mr. Cohen for the lawful
exercise of his First Amendment rights”); see also id. at
26 (first quoting Lancaster v. Incorporated Village of
Freeport, 22 N.Y.3d 30, 978 N.Y.S.2d 101, 1 N.E.3d 302
(N.Y. 2013) (considering a First Amendment retaliation
claim); then quoting People v. Oeser, 280 A.D.2d 782,
721 N.Y.S.2d 147 (3d Dep’t 2001) (not considering free
speech claims at all); then quoting People v. Bollander,
147 Misc. 2d 897, 558 N.Y.S.2d 795 (Sup. Ct. 1990)
(considering whether fear of retaliatory prosecution for
challenging a conviction implicates due process rights,
which is inapposite to Cohen’s claim, and not considering
free speech claims at all); and then quoting People v.
Douglas, 183 Misc. 2d 418, 704 N.Y.S.2d 438, 439 (Sup.
Ct. 1999) (noting that “retaliatory” motivation behind
indictment “was particularly offensive and repugnant to
the fair administration of law,” and therefore dismissing
an indictment). That a handful of New York cases, one
arising in the First Amendment context, mention the word
“retaliation” does not demonstrate a freestanding New
York common law tort claim for retaliation. Rather, Cohen’s
claim is clearly predicated on the First Amendment.
“The FTCA ‘has not waived the Government’s sovereign
immunity with respect to claims that its employees
have committed constitutional torts’ under the federal
constitution.” Hernandez v. United States, 939 F.3d 191,
205 (2d Cir. 2019) (alteration adopted) (quoting Castro v.
42a
Appendix B
United States, 34 F.3d 106, 110 (2d Cir. 1994)).7 As such,
Cohen’s first cause of action against the United States for
First Amendment retaliation is not cognizable under the
FTCA and must be dismissed.
Cohen’s second FTCA claim is for false arrest,
false imprisonment, and abuse of authority and process
under New York common law. “False arrest and false
imprisonment overlap; the former is a species of the latter.”
Wallace v. Kato, 549 U.S. 384, 388, 127 S. Ct. 1091, 166
L. Ed. 2d 973 (2007). “Under New York law, the elements
of a false arrest and false imprisonment claim are: ‘(1) the
defendant intended to confine the plaintiff, (2) the plaintiff
was conscious of the confinement, (3) the plaintiff did not
consent to the confinement and (4) the confinement was
not otherwise privileged.’” Hernandez, 939 F.3d at 199
(quoting McGowan v. United States, 825 F.3d 118, 126 (2d
Cir. 2016) (per curiam)). “For purposes of the privilege
element of a false arrest and false imprisonment claim,
an act of confinement is privileged if it stems from a
lawful arrest supported by probable cause.” Id. (internal
quotation marks omitted) (quoting De Lourdes Torres
v. Jones, 26 N.Y.3d 742, 27 N.Y.S.3d 468, 47 N.E.3d 747
(2016)). A claim for false imprisonment will only lie where
the confinement does not stem from legal process. As the
Supreme Court articulated:
7. In Hernandez, the Second Circuit also held that a FTCA
claim could not be brought against a federal officer on the theory
that his actions violated the New York State constitution. 939 F.3d
at 205-06.
43a
Appendix B
Reflective of the fact that false imprisonment
consists of detention without legal process,
a false imprisonment ends once the victim
becomes held pursuant to such process—when,
for example, he is bound over by a magistrate
or arraigned on charges. Thereafter, unlawful
detention forms part of the damages for the
‘entirely distinct’ tort of malicious prosecution,
which remedies detention accompanied, not
by absence of legal process, but by wrongful
institution of legal process.
Wallace, 549 U.S. at 389-90. “[T]he tort of false arrest does
not permit recovery for ‘confinement imposed pursuant to
legal process.’” Coakley v. Jaffe, 72 F. Supp. 2d 362, 363
(S.D.N.Y. 1999) (quoting Heck v. Humphrey, 512 U.S. 477,
483, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994)).
Cohen’s false arrest and false imprisonment claim are
based on the marshals’ shackling him, handcuffing him,
and remanding him to MCC and then to FCI Otisville,
and his confinement there for sixteen days. The first
three elements of a claim for false arrest and/or false
imprisonment are not in contention; there is no doubt
that defendants intended to confine Cohen, that Cohen
was aware of his confinement, and that Cohen did not
consent to his confinement. The fourth element, however,
is plainly absent. The complaint alleges that Cohen was
shackled, handcuffed, remanded, and confined during his
thirty-six-month period of incarceration; although he was
temporarily released on furlough with a planned transfer
to home confinement, an inmate on furlough “[r]emains in
44a
Appendix B
the legal custody of the U.S. Attorney General, in service
of a term of imprisonment.” 28 C.F.R. § 570.38(b)(1).
“Plaintiff ’s confinement was uncategorically privileged
because he was a convicted felon serving his sentence.”
McGowan v. United States, 94 F. Supp. 3d 382, 390
(E.D.N.Y. 2015). Just as a prisoner serving a term of
incarceration in prison would not have a claim for false
imprisonment for his transfer from one cell to another, or
even from standard conditions to solitary confinement,
Cohen does not have a claim for false imprisonment for
his remand and confinement. Cohen’s only response is
that “it has already been adjudicated by the Honorable
Alvin K. Hellerstein that plaintiff ’s incarceration was
not ‘privileged’ and was a result of retaliatory conduct
engaged in by defendants for the lawful exercise of
his First Amendment rights.” Dkt. No. 59 at 28. That
argument does not hold water; Judge Hellerstein found
that Cohen’s remand was an unconstitutional retaliation
for Cohen’s exercise of his First Amendment rights, but
it does not follow that the remand and his confinement—
effectuated pursuant to a remand order for an inmate in
federal custody—was the product of “the absence of legal
process,” see Wallace, 549 U.S. at 390. Rather, Cohen’s
complaint is not about the absence of legal process but for
wrongs incurred while Cohen was subject to legal process
and as a result of that process for which a claim of false
imprisonment does not lie.
“To prove abuse of process, plaintiff must show that
the defendant ‘(1) employs regularly issued legal process
to compel performance or forbearance of some act (2) with
intent to do harm without excuse of justification, and (3)
45a
Appendix B
in order to obtain a collateral objective that is outside the
legitimate ends of the process.’” Hernandez, 939 F.3d at
204 (quoting Savino v. City of New York, 331 F.3d 63, 76
(2d Cir. 2003)). The United States argues that this claim,
too, fails “[f]or similar reasons.” Dkt. No. 40 at 12. They
argue that the FBOP exercising its authority to determine
where a prisoner serves a sentence of incarceration is not
exercising “legal process”; no court order is required to
effectuate its decisions. See Cook v. Sheldon, 41 F.3d 73,
80 (2d Cir. 1994) (citing Mormon v. Baran, 35 N.Y.S.2d
906, 909 (Sup. Ct. 1942) for the proposition that “legal
process means that a court issued the process, and the
plaintiff will be penalized if he violates it”). In some
sense, the government’s argument appears troubling:
Cohen cannot pursue a false imprisonment claim for his
being shackled, handcuffed, remanded to prison, and
confined because it was done pursuant to valid legal
process in the form of his sentence from Judge Pauley,
and thus “his confinement was legally permitted during
the duration of his sentence,” Dkt. No. 40 at 12, but Cohen
also cannot pursue an abuse of process claim for being
shackled, handcuffed, remanded to prison, and confined
because that was not done pursuant to any legal process,
i.e., a court order. After all, as the unavailability of a
false imprisonment claim reflects, Cohen’s entire period
of detention is pursuant to legal process; without his
sentence, the Bureau of Prisons would not possess the
authority to remand him to prison without a separate court
order. But—as the only case Cohen cites recognizes—the
tort of abuse of process lies in “causing process to issue
lawfully but to accomplish some unjustified purpose.”
Bd. of Educ. of Farmingdale Union Free Sch. Dist. v.
46a
Appendix B
Farmingdale Classroom Teachers’ Ass’n, 38 N.Y.2d 397,
343 N.E.2d 278, 280, 380 N.Y.S.2d 635 (N.Y. 1975). The
“abuse” referenced by the tort is that “for maliciously
abusing the process of the court,” i.e., it addresses those
cases in which the process of the court “is manipulated
to achieve some collateral advantage, whether it be
denominated extortion, blackmail, or retribution.” Id. at
281, 283. Cohen does not allege that there was an abuse
in the process of obtaining the court order pursuant to
which he was confined. What he complains about is that
the FBOP perverted its authority under already issued
legal process, to accomplish goals for which that process
was not originally intended. In short, since Cohen alleges
no misconduct in connection with causing the process to
issue, he does not properly allege a claim for abuse of
process and his second cause of action must be dismissed.
Third, the government argues that Cohen’s emotional
distress claims—for negligent infliction of emotional
distress and intentional infliction of emotional distress—
relate to the same conduct as his false imprisonment
and abuse of process claims, and therefore must fall
with those claims. Dkt. No. 40 at 12 (first citing Moore
v. City of New York, 219 F. Supp. 2d 335, 339 (E.D.N.Y.
2002) for the proposition that “[n]o intentional infliction
of emotional distress claim will lie where the conduct
underlying the claim falls within the ambit of traditional
tort authority”; and then citing Rheingold v. Harrison
Town Police Dep’t, 568 F. Supp. 2d 384, 395 n.3 (S.D.N.Y.
2008) for the proposition that “[t]o the extent a plaintiff
is alleging an alternate theory of liability for false arrest,
imprisonment and prosecution sounding in negligence,
47a
Appendix B
New York does not provide a cause of action under such
a theory”). Cohen nowhere addresses this argument or
defends the availability of his emotional distress claims
if his false imprisonment and abuse of process claims
are dismissed. Therefore, the Court deems the claims
abandoned. See, e.g., Pincover v. J.P. Morgan Chase Bank,
N.A., 2022 U.S. Dist. LEXIS 51280, 2022 WL 864246, at
*11 (S.D.N.Y. Mar. 22, 2022) (“A court may, and generally
will, deem a claim abandoned when a plaintiff fails to
respond to a defendant’s arguments that the claim should
be dismissed.” (internal quotation marks omitted) (first
quoting Williams v. Mirabal, 2013 U.S. Dist. LEXIS 6676,
2013 WL 174187, at *2 (S.D.N.Y. Jan 16, 2013)); and then
quoting Lipton v. County of Orange, 315 F. Supp. 2d 434,
446 (S.D.N.Y. 2004))).
Finally, the United States moves to dismiss Cohen’s
remaining FTCA claims—for negligent failure to
protect and negligent hiring, retention, training, and
supervision—as barred by the FTCA’s discretionary
function exception, which provides that the Government
is not liable for:
[a]ny claim based upon an act or omission of
an employee of the Government, exercising
due care, in the execution of a statute or
regulation, whether or not such statute or
regulation be valid, or based upon the exercise
or performance or the failure to exercise or
perform a discretionary function or duty on
the part of a federal agency or an employee of
the Government, whether or not the discretion
involved be abused.
48a
Appendix B
28 U.S.C. § 2680(a). “The exception covers only acts that
are discretionary in nature, acts that ‘involve an element
of judgment or choice,’ and ‘it is the nature of the conduct,
rather than the status of the actor that governs whether
the exception applies.’” United States v. Gaubert, 499 U.S.
315, 322, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991) (citations
omitted and alterations adopted) (first quoting Berkovitz
by Berkovitz v. United States, 486 U.S. 531, 536, 108 S. Ct.
1954, 100 L. Ed. 2d 531 (1988); and then quoting United
States v. S.A. Empresa de Viacao Aerea Rio Grandense
(Varig Airlines), 467 U.S. 797, 813, 104 S. Ct. 2755, 81
L. Ed. 2d 660 (1984)). “[E]ven ‘assuming the challenged
conduct involves an element of judgment,’ it remains to
be decided ‘whether that judgment is of the kind that the
discretionary function exception was designed to shield.’”
Id. (quoting Berkovitz, 486 U.S. at 536). The exception
“marks the boundary between Congress’ willingness to
impose tort liability upon the United States and its desire
to protect certain governmental activities from exposure
to suit by private individuals.” Varig Airlines, 467 U.S.
at 808.
The Second Circuit has described a two-part test,
termed the Berkovitz-Gaubert test, as “the framework
for evaluating whether particular governmental conduct
falls under the” discretionary function exception:
According to the Berkovitz-Gaubert test, the
[discretionary function exception] bars suit only
if two conditions are met: (1) the acts alleged to
be negligent must be discretionary, in that they
involve “an element of judgment or choice” and
49a
Appendix B
are not compelled by statute or regulation and
(2) the judgment or choice in question must be
grounded in “considerations of public policy” or
susceptible to policy analysis.
Coulthurst v. United States, 214 F.3d 106, 109-10 (2d Cir.
2000).
The governmental conduct challenged in the two
remaining causes of action is (1) “negligently operating
and managing FCI Otisville,” Compl. ¶ 123, presumably
in placing Cohen in solitary confinement in a space
with poor ventilation, no air conditioning, and daily
temperatures exceeding one-hundred degrees, id. ¶ 102;
and (2) “negligence, carelessness, and recklessness . . . in
failing to meet its duty of care to plaintiff in its screening,
hiring, training, supervising, evaluating, managing,
controlling, and retaining of defendants and other
agents, servants, and employees of the United States,”
id. ¶ 137. As to the second of these, even assuming that it
is well-plead and not conclusory, it clearly falls within the
discretionary function exception. See, e.g., Saint-Guillen
v. United States, 657 F. Supp. 2d 376, 387 (E.D.N.Y. 2009)
(“[F]ederal courts have found such hiring, training, and
supervision decisions generally fall within the exception.”);
Li v. Aponte, 2008 U.S. Dist. LEXIS 74725, 2008 WL
4308127, at *8 (S.D.N.Y. Sept. 16, 2008) (holding that the
plaintiff ’s “common law claims against the United States
for negligent hiring, training and supervision are barred
by the ‘discretionary function’ exception of the FTCA,”
and collecting cases for the proposition that “[p]ersonnel
decisions of the United States generally fall within the
50a
Appendix B
discretionary function exception to the FTCA”). Cohen’s
negligent hiring, retention, training, and supervision claim
therefore cannot proceed.
As to the first of this challenged conduct—the
negligent operation and management of FCI Otisville—
however, it is a closer call. The Second Circuit has held that
certain negligence claims related to prison management
are not subject to the discretionary function exception.
See Coulthurst v. United States, 214 F.3d 106, 109 (2d
Cir. 2000). In Coulthurst, the plaintiff, who was a federal
prisoner, was lifting weights in the prison exercise room
and suffered an injury when a cable on a lateral pull down
machine snapped. Id. at 107. He brought claims against
the prison for “‘negligence and carelessness’ in that the
defendant ‘failed to diligently and periodically inspect the
weight equipment, and the cable’ and ‘failed to replace
the cable after undue wear and tear.’” Id. at 108 (citation
omitted). The district court dismissed the claim as barred
by the discretionary function exception, and the Second
Circuit vacated. Id. at 108, 111. In doing so, the Second
Circuit distinguished between the type of negligence that
is involved in designing deficient procedures or decisions
about how frequently to inspect the exercise equipment,
which involve “elements of judgment and choice” as well
as “considerations of public policy,” id. at 109, and thus
would be subject to the discretionary function exception,
and the type of negligence that results from an individual
officer being carelessly inattentive or lazy in not checking
on things, which does not involve elements of judgment and
choice or considerations of governmental policy and would
not be subject to the discretionary function exception,
51a
Appendix B
id. The Second Circuit found that the complaint was
ambiguous as to which type of negligence was alleged,
and therefore that the district court was wrong to dismiss
the claim entirely as barred by the discretionary function
exception. Id. at 109-10.
Cohen’s allegations in his complaint are similarly
ambiguous as to what type of negligence Cohen is alleging.
While Cohen alleges generally that his negligent failure
to protect claim is based on the United States’ breach
of its duty “in negligently operating and managing FCI
Otisville,” Compl. ¶ 123, it is not clear whether Cohen
claims that the alleged “negligence” resulted from the
policies and procedures governing FCI Otisville (which
allowed for the unsafe conditions in Cohen’s cell to occur
perhaps due to concerns about costs or resource allocation)
or from the carelessness of an individual guard in failing
to check that the cell was well-ventilated, air conditioned,
and a safe temperature.
To clarify this issue, the Court asked Cohen’s counsel
at oral argument which of these two theories (or both)
he was alleging. Oral Argument Tr. 50. Cohen’s counsel
stated that he was only alleging that the “policies and
procedures in place during COVID at Otisville were
egregiously bad in that they, aside from deliberately
indifferent, were just negligent in the maintenance and
upkeep.” Id. at 50-51. In other words, Cohen admitted
that he was not asserting a negligent guard theory of
liability. Unfortunately for Cohen, this concession is fatal
to his ability to assert this claim: Coulthurst is clear that
the designing of such policies and procedures regarding
52a
Appendix B
maintenance and upkeep of prisons are subject to the
discretionary function exception and thus Cohen’s claim of
negligent failure to protect must be dismissed accordingly.
CONCLUSION
The motions to dismiss are GRANTED.
The Clerk of Court is respectfully directed to close
Dkt. Nos. 38, 8 39, 41.
SO ORDERED.
Dated: November 14, 2022
New York, New York
/s/ Lewis J. Liman
Lewis J. Liman
United States District Judge
8. Defendants’ request to stay discovery in this matter pending
adjudication of their motions to dismiss, Dkt. No. 38 has already been
addressed, Dkt. No. 66, and nonetheless should be denied as moot.
53a
C THE UNITED
APPENDIX C —Appendix
ORDER OF
STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT, FILED MARCH 7, 2024
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 23-35
MICHAEL D. COHEN,
Plaintiff-Appellant,
v.
DONALD J. TRUMP, FORMER PRESIDENT OF
THE UNITED STATES, WILLIAM P. BARR,
FORMER ATTORNEY GENERAL OF THE
UNITED STATES, MICHAEL D. CARVAJAL,
DIRECTOR OF THE BUREAU OF PRISONS,
JON GUSTIN, ADMINISTRATOR OF THE
RESIDENTIAL REENTRY MANAGEMENT
BRANCH OF THE BUREAU OF PRISONS,
PATRICK MCFARLAND, RESIDENTIAL
REENTRY MANAGER OF THE FEDERAL
BUREAU OF PRISONS, JAMES PETRUCCI,
WARDEN OF FCI OTISVILLE, ENID FEBUS,
SUPERVISORY PROBATION OFFICER OF THE
UNITED STATES PROBATION AND PRETRIAL
SERVICES, ADAM PAKULA, PROBATION
OFFICER OF THE UNITED STATES PROBATION
AND PRETRIAL SERVICES,
Defendants-Appellees.
54a
Appendix C
Filed March 7, 2024
ORDER
Appellant Michael D. Cohen has filed a petition for
rehearing en banc. The active members of the Court have
considered the request for rehearing en banc.
IT IS HEREBY ORDERED that the petition is
denied.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
/s/ Catherine O’Hagan Wolfe
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.