Opposition Brief — Michael D. Cohen, Petitioner v. Donald J. Trump, former President of the United States, et al.

No. 24-41

In the

Supreme Court of the United States

MICHAEL D. COHEN,

Petitioner,

v.

DONALD J. TRUMP, FORMER PRESIDENT

OF THE UNITED STATES, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Second Circuit

BRIEF IN OPPOSITION

A lina Habba

Counsel of Record

Habba Madaio &

A ssociates LLP

112 West 34th Street,

17th & 18th Floors

New York, NY 10120

(908) 869-1188

ahabba@habbalaw.com

Attorney for Respondents

331962

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

1.

Did the Second Circuit correctly find that Petitioner’s

claim does not warrant an extension of the Bivens

doctrine?

2.

Is Petitioner’s claim barred by the doctrine of

presidential immunity?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

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

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

Petitioner Has Failed to A sser t an

Actionable Bivens Claim . . . . . . . . . . . . . . . . . . . . 2

A. This Case Presents a New and Unique

Bivens Context . . . . . . . . . . . . . . . . . . . . . . . . 5

B. Several ‘Special Factors’ Counsel

A ga i nst T he Ex pansion Of T he

Bivens Doctrine . . . . . . . . . . . . . . . . . . . . . . . 6

i.

Petitioner’s Bivens Claim Would

D i s r upt t he C on s t it ut ion a l

Separation-of-Powers . . . . . . . . . . . . . . . 7

ii. There Are Adequate Alternative

Remedies Of Which Petitioner

Took Full Advantage . . . . . . . . . . . . . . 10

iii

Table of Contents

Page

II. P residential Immunity P resents an

Insurmountable Obstacle to Petitioner’s

Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Arar v. Ashcroft,

585 F.3d 559 (2d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . 7

Ashcroft v. Iqbal,

556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics,

403 U.S. 388 (1971) . . . . . . . . . . . 2-8, 10, 12, 14, 16, 18

Bush v. Lucas,

462 U.S. 367 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11

Carlson v. Green,

446 U.S. 14 (1980) . . . . . . . . . . . . . . . . . . . . . 2, 4, 5, 6, 7

Chappell v. Wallace,

462 U.S. 296 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Cohen v. Barr, et al.,

No. 20-cv-5614 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Cohen v. United States of America, et al.,

No. 1:21-cv-10774 (S.D.N.Y. Dec. 17, 2021) . . . . . . . . . 9

v

Cited Authorities

Page

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) . . . . . . . . . . . . . . . . . . . . . 2, 3, 12, 13

Davis v. Passman,

442 U.S. 228 (1979) . . . . . . . . . . . . . . . . . . . . . . 2. 3, 4, 5

Devillier v. Texas,

601 U.S. 285 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Doe v. Hagenbeck,

870 F.3d 36 (2d Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . 2

Egbert v. Boule,

596 U.S. 482 (2022) . . . . . . . . . . . . . . . . . 3, 4, 7, 8, 10-12

FDIC v. Meyer,

510 U.S. 471 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Ferri v. Ackerman,

444 U.S. 193, 100 S. Ct. 402, 62 L.Ed.2d 355

(1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Hernández v. Mesa,

140 S. Ct. 735 (2020) . . . . . . . . . . . . . . . . . . . . . 3, 4, 6, 8

Hui v. Castaneda,

559 U.S. 799 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Kendall v. United States,

12 Pet. 524 (1838) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

vi

Cited Authorities

Page

Minneci v. Pollard,

565 U.S. 118 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12

Nixon v. Fitzgerald,

457 U.S. 731 (1982) . . . . . . . . . . . . . . 1, 6, 8, 9, 10, 15-18

Pierson v. Ray,

386 U.S. 547 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Schweiker v. Chilicky,

487 U.S. 412 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11

Trump v. Mazars USA, LLP,

140 S. Ct. 2019 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Trump v. United States,

144 S. Ct. 2312 (2024) . . . . . . . . . . . . . . . . 6, 9, 10, 15-18

United States v. Stanley,

483 U.S. 669 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Wilkie v. Robbins,

551 U.S. 537 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Ziglar v. Abbasi,

582 U.S. 120, 137 S. Ct. 1843

(2017) . . . . . . . . . . . . . . . . . . . . . . . . . 3-8, 11, 12, 13, 14

vii

Cited Authorities

Page

Constitutional Provisions

U.S. Const. art. II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. Const. amend. VIII . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statutes, Rules and Regulations

28 C.F.R. § 542.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1

STATEMENT

The Petition should be denied because the decisions

by both the United States Court of Appeals for the

Second Circuit and the United States District Court

for the Southern District of New York to dismiss the

action commenced by the petitioner, Michael D. Cohen

(“Petitioner”), did not involve the creation of any new

or novel proposition of law and likewise did not conflict

with the law of any other circuit. To the contrary, these

courts faithfully applied this Court’s precedent to find

that Petitioner lacks a legally cognizable claim against

the respondent, President Donald J. Trump (“President

Trump”), and that the Complaint is entirely devoid of

merit. More specifically, both courts recognized that this

matter involves several significant factors which counsel

against the extension of the highly disfavored Bivens

doctrine, including the existence of adequate alternative

remedies and the grave separation-of-powers concerns

that would arise if Petitioner’s claim were allowed to

proceed. In addition, dismissal was also warranted on

the independent basis that Petitioner’s Complaint—which

overtly seeks to hold President Trump liable for acts taken

within the “outer perimeter of his official responsibility”

as President—is absolutely barred by the doctrine of

Presidential immunity. Nixon v. Fitzgerald, 457 U.S. 731,

756 (1982).

Accordingly, for the reasons set forth below, the

District Court and the Second Circuit correctly dismissed

Petitioner’s claim.

2

ARGUMENT

I.

Petitioner Has Failed to Assert an Actionable

Bivens Claim.

There is no judicially recognizable remedy for the

alleged constitutional deprivations Petitioner claims to

have suffered, and the circumstances of this case do not

warrant an extension of the Bivens doctrine.

To date, this Court has codified an implied Bivens

cause of action in only three specific circumstances. First,

in Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, this Court held that federal lawenforcement officers may face personal monetary liability

for participating in a search or seizure that violates

the Fourth Amendment. 403 U.S. 388 (1971). Next,

in Davis v. Passman, this Court extended Bivens to

permit a damages suit against a congressman for gender

discrimination in violation of the Due Process Clause of

the Fifth Amendment. 442 U.S. 228 (1979). Finally, in

Carlson v. Green, this Court permitted a Bivens claim to

proceed against individual federal prison officials for an

alleged violation of the Eighth Amendment’s Cruel and

Unusual Punishment Clause. 446 U.S. 14 (1980).

Aside from these narrow contexts, this Court has

“otherwise consistently declined to broaden Bivens to

permit new claims.” Doe v. Hagenbeck, 870 F.3d 36, 43

(2d Cir. 2017); Corr. Servs. Corp. v. Malesko, 534 U.S.

61, 68 (2001) (“[W]e have consistently refused to extend

Bivens liability to any new context or new category of

defendants.”). In the four decades since Carlson, there

has been a “notable change in th[is] Court’s approach to

3

recognizing implied causes of action” and this Court has

“made clear that expanding the Bivens remedy is now a

‘disfavored’ judicial activity.” Ziglar v. Abbasi, 582 U.S.

120, 121 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662,

675 (2009)); see also Hernández v. Mesa, 140 S. Ct. 735,

741 (2020) (“Bivens, Davis, and Carlson were 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.”) (quoting Ziglar, 582 U.S.

at 132.). During that span, this Court has “retreated”

from and “abandoned” its original, short-lived Bivens

approach, Malesko, 534 U.S. 61, 67, n.3 (quoting Alexander

v. Sandoval, 532 U.S. 275, 287 (2001)), as it has come

“to appreciate more fully the tension between [its prior]

practice [of implying a remedy] and the Constitution’s

separation of legislative and judicial power,” Hernández,

140 S. Ct. at 741-42.

In the current era, this Court has “consistently

rebuffed requests to add to the claims allowed under

Bivens,” and declined to extend the doctrine to a single

new factual scenario. Hernández, 140 S. Ct. at 743.

Specifically, since Carlson, this Court has reviewed twelve

separate Bivens claims and has refused to recognize any

of them as actionable. See Egbert v. Boule, 596 U.S. 482,

493 (2022) (denying to extend Bivens doctrine to the facts

of plaintiff ’s claim); see also Hernandez v. Mesa, 140 S. Ct.

735, 744 (2020); Ziglar v. Abbasi, 582 U.S. 120 (2017);

Minneci v. Pollard, 565 U.S. 118 (2012); Hui v. Castaneda,

559 U.S. 799 (2010); Wilkie, 551 U.S. 537 (2007); Malesko,

534 U.S. 61 (2001); FDIC v. Meyer, 510 U.S. 471 (1994);

Schweiker v. Chilicky, 487 U.S. 412 (1988); United States

v. Stanley, 483 U.S. 669 (1987); Bush v. Lucas, 462 U.S.

367 (1983); and Chappell v. Wallace, 462 U.S. 296 (1983).

4

The dwindling viability of the Bivens doctrine is consistent

with this Court’s contemporary view that “Congress is

best positioned to evaluate ‘whether, and the extent to

which, monetary and other liabilities should be imposed

upon individual officers and employees of the Federal

Government’ based on constitutional torts.” Hernández,

140 S. Ct. at 742 (quoting Abbasi, 137 S. Ct. at 1856.). This

Court has even gone so far as to suggest that had Bivens,

Davis, and Carlson been decided today, “it is doubtful

that [this Court] would have reached the same result.”

Hernández, 140 S. Ct. at 742-43 (citing Ziglar, 137 S. Ct.

at 1856).

As with the Court’s recent encounters with Bivens,

the instant matter does not justify an extension of the

disfavored doctrine. Traditionally, this Court has “framed

the [Bivens] inquiry as proceeding in two steps.” Egbert,

596 U.S. at 492. The first step in the inquiry is “whether

the request involves a claim that arises in a new context

or involves a new category of defendants.” Hernández,

140 S. Ct. at 743 (citation and internal quotation marks

omitted). If the claim arises in a new context, the Court

proceeds “to the second step,” asking “whether there are

any ‘special factors that counsel hesitation’ about granting

the extension.” Id. (brackets and citations omitted). But as

this Court recently clarified, “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.” Egbert, 596 U.S. at 492; see id. at 496 (“A court

faces only one question: whether there is any rational

reason (even one) to think that Congress is better suited

to ‘weigh the costs and benefits of allowing a damages

action to proceed.’ “). The answer to that question “in

most every case,” as here, is that “no Bivens action may

lie.” Id. at 492.

5

Here, Petitioner’s claim fails on all fronts. Petitioner

openly admits that his Bivens claim arises from a new

context and involves a new category of defendants; there

are many “special factors that counsel hesitation” against

expanding Bivens, including the adequacy of Petitioner’s

alternative remedies and the extent to which Petitioner’s

claim would disrupt the constitutional separation-ofpowers; and there are a vast number of reasons why

Congress is better equipped to create the type of damages

remedy that Petitioner seeks. Therefore, like every other

Bivens claim this Court has reviewed in nearly half a

century, Petitioner’s Bivens claim must be dismissed.

A.

This Case Presents a New and Unique Bivens

Context.

“[T]he first question a court must ask [is] whether the

claim arises in a new Bivens context.” Ziglar, 582 U.S. at

147. Petitioner’s claim undoubtedly does.

Notably, Petitioner does not dispute that his claim

presents a new context which would require an expansion

of the Bivens doctrine. Nor can he. As Plaintiff readily

concedes, the facts alleged in Petitioner’s Complaint

differ significantly from those present in Bivens, Davis,

and Carlson. See Pet. App. at 20 (“If this case does not

constitute the ‘most unusual circumstances,’ then what

case would?”). The “rank of the officer involved” is another

distinguishing factor, as Petitioner has asserted a claim

against the highest-ranking officer in the nation—the

President of the United States. Ziglar, 582 U.S. at 122.

Finally, the “risk of disruptive intrusion by the Judiciary

into the functioning of other branches” is at its apex

here, where Petitioner is asking this Court to impose

6

liability on President Trump for acts allegedly performed

within the scope of his responsibilities as President—a

scenario that would singlehandedly abolish the concept

of Presidential immunity and “seriously cripple the

proper and effective administration of public affairs as

entrusted to the executive branch of the government.”

Trump v. United States, 144 S.Ct. 2312, 2333-34 (2024)

(citing Nixon, 457 U.S. at 745). Thus, both the District

Court and the Court of Appeals properly determined that

Petitioner’s Bivens claim arises in a new context. See Pet.

App. 7a (“[W]e cannot infer a Bivens cause of action for

Cohen’s claims because there is reason to hesitate before

extending Bivens to this new context.”); Pet. App. 27a

(“[T]he 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. . . . ”).

As such, the very “newness” of Petitioner’s proposed

claim and the uncertainty of “predict[ing] the ‘systemwide’

consequences of recognizing a cause of action” are, in and

of themselves, “special factor[s] that foreclose[ ] relief.”

Egbert, 596 U.S. at 493 (citing Hernández v. Mesa, 885

F.3d 811, 818 (5th Cir. 2018) (en banc) (“The newness of

this ‘new context’ should alone require dismissal.”) On

this basis alone, Petitioner’s claim is worthy of dismissal.

B. Several ‘Special Factors’ Counsel Against The

Expansion Of The Bivens Doctrine

This Court has made clear that a “Bivens remedy will

not be available if there are ‘special factors counselling

hesitation in the absence of affirmative action by

Congress.’” Ziglar, 582 U.S. at 121 (quoting Carlson, 446

7

U.S. 14 (1980)); see also Arar v. Ashcroft, 585 F.3d 559,

573 (2d Cir. 2009) (“When the Bivens cause of action was

created in 1971, the Supreme Court explained that such

a remedy could be afforded because that “case involve[d]

no special factors counseling hesitation in the absence

of affirmative action by Congress’”) (citing Bivens,

403 U.S. at 396). Indeed, the existence of even a single

special factor forecloses a Bivens remedy. See Egbert,

596 U.S. at 492 (“If there is even a single reason to pause

before applying Bivens in a new context, a court may not

recognize a Bivens remedy.” (quotation marks omitted));

id. at 496 (“A court faces only one question: whether there

is any rational reason (even one) to think that Congress is

better suited to weigh the costs and benefits of allowing

a damages action to proceed.” (quotation marks omitted;

emphases in original)).

In addition to the new context of Petitioner’s claim,

there are several other “special factors” which should

prevent this Court from recognizing Petitioner’s proposed

Bivens claim. As the Court of Appeals astutely noted,

these factors include the adequacy of alternative remedial

schemes and the significant separation-of-powers concerns

which would arise from Petitioner’s claim. Pet. App. 8a-9a.

For the reasons set forth below, these special factors weigh

definitively against Petitioner and foreclose the possibility

of his Bivens claim proceeding against President Trump.

i.

Petitioner’s Bivens Claim Would Disrupt

the Constitutional Separation-of-Powers.

Petitioner concentrates the majority of his brief on

the perceived inadequacy of the alternative forms of relief

that were accessible to him and that he indeed pursued.

8

Notably absent from his Petition is any acknowledgment of

the glaring and significant separation-of-powers concerns

that would arise if his claim were allowed to proceed

against President Trump.

This Court has emphasized that the “central”

consideration with respect to the “special factors” inquiry

is whether an action would run afoul of the “separationof-powers principles.” Abbasi, 137 S. Ct. at 1857; see

also Hernandez, 140 S. Ct. at 749 (“[T]his case features

multiple factors that counsel hesitation about extending

Bivens, but they can all be condensed to one concern—

respect for the separation of powers.”); Ziglar 582 U.S.

at 136 (“[T[he decision to recognize a damages remedy

requires an assessment of its impact on governmental

operations systemwide.”); Egbert, 596 U.S.at 489 n.3

(recognizing that a Bivens claim “is an extraordinary act

that places great stress on the separation of powers.”).

Permitting a Bivens claim to proceed against

the head of the Executive Branch, for acts allegedly

performed within his official capacity as President, would

undoubtedly raise grave separation-of-powers concerns.

See, e.g., Nixon, 457 U.S. at 754, n. 34 (“The executive

power is vested in a President; and as far as his powers

are derived from the constitution, he is beyond the reach of

any other department[.]”) (citing Kendall v. United States,

12 Pet. 524 (1838)); Trump v. Mazars USA, LLP, 140 S. Ct.

2019, 2034 (2020) (“The President is the only person who

alone composes a branch of government.”). This Court has

already affirmed that a President is “entitled to absolute

immunity from damages liability predicated on his official

acts.” Nixon, 457 U.S. at 749. In justifying the creation of

the Presidential immunity doctrine, this Court noted that

9

it was a “functionally mandated incident of the President’s

unique office” which is “rooted in the constitutional

tradition of the separation of powers.” Id. at 749. This

Court went on to emphasize the indispensable nature

of this protection, noting that, without it, a President’s

ability to effectively serve his country would be severely

impaired. See id. at 752 (absence of Presidential immunity

would risk “distract[ing] a President from his public

duties, to the detriment of not only the President and his

office but also the Nation that the Presidency was designed

to serve.”); Trump, 144 S. Ct. at 2333-34 (“[I]t would

seriously cripple the proper and effective administration

of public affairs as entrusted to the executive branch of

the government if [i]n exercising the functions of his office,

the President was under an apprehension that the motives

that control his official conduct may, at any time, become

the subject of inquiry.”) (citation and internal quotations

omitted). Most recently, in Trump v. United States, this

Court recognized that Presidential immunity plays a key

role in maintaining the balance between the three co-equal

branches of government, proclaiming that such immunity

is “required to safeguard the independence and effective

functioning of the Executive Branch, and to enable the

President to carry out his constitutional duties without

undue caution.” 144 S. Ct. 2312, 2331 (2024).

In his Complaint, Petitioner explicitly seeks to hold

President Trump liable for acts allegedly performed in

his official capacity as President. See Cohen v. United

States of America, et al., No. 1:21-cv-10774 (S.D.N.Y. Dec.

17, 2021), ECF No. 3 at ¶ 37 (the “Complaint”). (“At all

times relevant herein, defendant Donald J. Trump was

President of the United States[.]”); Id. at ¶ 47 (“[A]t all

relevant times herein, [President Trump] acted within

10

the course and scope of [his] employment[.]”) (emphasis

added). For all the reasons stated in Nixon and Trump,

such a claim cannot be allowed to proceed. Among other

things, it would upend the constitutional separationof-powers, curtail the President’s ability to effectively

perform his duties, and destroy the very concept of

Presidential immunity. It is therefore imperative that this

Court decline to expand the Bivens doctrine to encompass

Petitioner’s claim. See, e.g., Egbert, 596 U.S. at 496, 498

n.3 (Bivens so imperils the “separation of powers,” and

so “impair[s] governmental interests,” that courts have a

responsibility to sua sponte “evaluate any grounds that

counsel against Bivens relief.”); Nixon, 457 U.S. at 743,

(recognizing the “special solicitude due to claims alleging

a threatened breach of essential Presidential prerogatives

under the separation-of-powers.”).

At bottom, the Court of Appeals correctly found that

there are “significant separation-of-powers concerns”

which prohibit Petitioner from asserting his proposed

Bivens claim against President Trump. Pet. App. 8a.

Petitioner has failed to address this point at all, much less

provide any compelling argument in favor of upending

decades of constitutional jurisprudence and disrupting

the delicate balance of power between the Judiciary and

Executive Branch. Therefore, his Petition must be denied.

ii.

There Are Adequate Alternative Remedies

Of Which Petitioner Took Full Advantage.

The District Court and the Court of Appeals both

correctly recognized that an extension of the Bivens

doctrine was unwarranted due to the existence of

adequate alternative remedies of which Plaintiff could

have, and did, take advantage.

11

This Court held in Egbert that “a court may not fashion

a Bivens remedy if Congress already has provided, or

has authorized the Executive to provide, ‘an alternative

remedial structure.’” 142 S. Ct. at 1804 (quoting Ziglar,

582 U.S. at 137). This holds true even if the remedial

structure does not provide complete relief, id. (citing Bush

v. Lucas, 462 U.S. 367, 388 (1983)), or even provides no

relief at all to the particular plaintiff in a given action, see

Schweiker, 487 U.S. at 421-422 (“The absence of statutory

relief for a constitutional violation, for example, does

not by any means necessarily imply that courts should

award money damages against the officers responsible

for the violation.). As this Court has explained, “[s]o long

as Congress or the Executive has created a remedial

process that it finds sufficient to secure an adequate

level of deterrence, the courts cannot second-guess that

calibration by superimposing a Bivens remedy.” Egbert,

596 U.S. at 498.

Petitioner acknowledges that he applied for a writ

of habeas corpus and was ultimately successful in this

endeavor. See Pet. App. 9. He argues, however, that the

writ of habeas corpus does not foreclose his Bivens claim

because the writ, on its own, lacks a deterrent element.

Petitioner does not identify any relevant authority in

support of his position; instead, he points to questions

that were raised by certain members of the panel during

oral argument before the Court of Appeals. Pet. App.

15-16. Of course, these questions carry no authoritative

weight and did not dissuade the Court of Appeals from

concluding that Petitioner’s writ of habeas corpus was

an adequate alternative remedy which prevents him

from asserting a Bivens claim. See Pet. App. 9a (“Under

the circumstances presented here, a successful petition

12

for habeas relief is sufficient to foreclose Cohen’s Bivens

claims.”) (quoting Ziglar, 582 U.S. at 144-145.). Indeed,

the Court of Appeals noted that this precise issue was

addressed in Ziglar, where this Court recognized that a

habeas petition effectively defeats a petitioner’s ability

to bring a Bivens claim. See Ziglar, 582 U.S. at 144-145

(The “habeas remedy” may “provide [ ] a faster and more

direct route to relief than a suit for money damages.”).

Thus, the existence of this “alternative, existing process

. . . constitutes a convincing reason for the Judicial Branch

to refrain from providing a new and freestanding remedy

in damages.” Minneci, 565 U.S. at 125–26.

In this matter, not only was the writ available to

Petitioner, but he utilized it to his success. As result of

his habeas filing, Judge Hellerstein ordered Petitioner’s

transfer to home confinement for the remainder of his

sentence, see Cohen v. Barr, et al., No. 20-cv-5614, ECF

Nos. 30, 36. While Petitioner may be dissatisfied with the

purported adequacy of said relief, an alternative remedy

need not “provide complete relief ” for the alleged violation

or be as “effective as an individual damages remedy”

to foreclose a Bivens remedy. Egbert, 596 U.S. at 498

(quotation marks omitted); see also Malesko, 534 U.S. at 69

(“So long as the plaintiff ha[s] an avenue for some redress,

bedrock principles of separation of powers foreclose

judicial imposition of a new substantive liability.”).

Petitioner’s arguments are therefore unavailing.

Petitioner also had other potential avenues for redress

that he could have pursued but chose not to, including the

Bureau of Prison’s Administrative Remedy Program and

injunctive relief. The Administrative Remedy Program

allows inmates to file grievances “relating to any aspect

13

of his/her own confinement.” 28 C.F.R. § 542.10, and

this Court has affirmed that the “administrative review

mechanisms crafted by Congress provided meaningful

redress and thereby foreclosed the need to fashion a

new, judicially crafted cause of action.” See Malesko, 534

U.S. at 68. In Malesko, this Court explained that the

Administrative Remedy Program “provides yet another

means through which allegedly unconstitutional actions

and policies can be brought to the attention of the BOP

and prevented from recurring.” Id. at 64. Moreover,

as the District Court noted in its holding, injunctive

relief was another avenue of relief that Petitioner could

have pursued. See 32a; see also, Ziglar, 582 U.S. at 144

(denying Bivens claim where injunctive relief challenging

“large-scale policy decisions concerning . . . conditions of

confinement,” as well as possible habeas petition, were

available to plaintiff ). Petitioner asserts that injunctive

relief “provide[s] no deterrence for similar abuses by

federal officials.” See Pet. App. 13. This unsupported

contention, however, flies in the face of this Court’s holding

in Malesko, wherein it was stated that “injunctive relief has

long been recognized as the proper means for preventing

entities from acting unconstitutionally.” Malesko, 524 U.S.

at 74. Thus, given the availability of the Administrative

Remedy Program and injunctive relief, Petitioner had

several additional forms of adequate alternative relief

that he could have pursued.

Finally, Petitioner’s deterrence argument is entirety

devoid of merit when viewed in the context of the instant

matter. Petitioner argues that 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

14

the special risks presented by this case and the need

for an effective, practical, and adequate deterrent.” Pet.

App. 24. But Petitioner has it backwards. In Ziglar, this

Court grappled with the question of whether “absent a

Bivens remedy there will be insufficient deterrence to

prevent officers from violating the Constitution.” Ziglar,

582 U.S. at 145, and determined that the risks presented

by subjecting high-ranking officers to Bivens liability

outweighed any threat of a perceived lack of deterrence.

This Court reasoned: “If Bivens liability were to be

imposed, high officers who face personal liability for

damages might refrain from taking urgent and lawful

action in a time of crisis. And, as already noted, the costs

and difficulties of later litigation might intrude upon and

interfere with the proper exercise of their office.” Id.

This concern applies with extra force when the

potential defendant is the President of the United States.

Indeed, this Court has repeatedly emphasized the gravity

and uniqueness of the President’s position and the need

for the President to operate without undue deterrence

and free from the fear of civil reprisal:

Because of the singular importance of the

President’s duties, diversion of his energies

by concern with private lawsuits would raise

unique risks to the effective functioning of

government . . . [A] President must concern

himself with matters likely to “arouse the most

intense feelings.” Pierson v. Ray, 386 U.S., at

554, 87 S. Ct., at 1218. Yet, as our decisions

have recognized, it is in precisely such cases

that there exists the greatest public interest

in providing an official “the maximum ability

to deal fearlessly and impartially with” the

15

duties of his office. Ferri v. Ackerman, 444 U.S.

193, 203, 100 S. Ct. 402, 408, 62 L.Ed.2d 355

(1979). This concern is compelling where the

officeholder must make the most sensitive and

far-reaching decisions entrusted to any official

under our constitutional system. Nor can the

sheer prominence of the President’s office be

ignored. In view of the visibility of his office

and the effect of his actions on countless people,

the President would be an easily identifiable

target for suits for civil damages. Cognizance

of this personal vulnerability frequently could

distract a President from his public duties, to

the detriment of not only the President and his

office but also the Nation that the Presidency

was designed to serve.

Nixon 457 U.S. at 752-753; see also Trump, 144 S.Ct. at

2331 (noting that Presidential immunity is necessary “to

enable the President to carry out his constitutional duties

without undue caution.”).

This Court’s reasoning in Nixon and Trump is

directly on point and wholly invalidates Petitioner’s

deterrence argument. Taken to its logical conclusion,

Petitioner’s proposal that this Court subject Presidents

to Bivens liability as an “effective, practical and adequate

deterrent” would collapse the protections afforded by

Presidential immunity and render a President “unduly

cautious in the discharge of his official duties.” Nixon,

457 U.S. at 752, n. 32. This outcome is precisely what

this Court has repeatedly cautioned against and actively

sought to avoid. Therefore, Petitioner’s core argument on

deterrence is fundamentally misguided.

16

II. Presidential Immunity Presents an Insurmountable

Obstacle to Petitioner’s Claim.

Even assuming arguendo that this Court were to find

that a Bivens action could theoretically be maintained by

Petitioner, any such claim would inherently fail against

President Trump since it would be independently barred

by the doctrine of Presidential immunity. The same goes

for any hypothetical remedy (which Petitioner asks this

Court to create) that would afford relief “when a federal

judge finds the Government violated an individual right

to speech by confining him in prison,” which Petitioner

asks this Court to create. Pet. App. 24.

It is black-letter law that a President is “entitled to

absolute immunity from damages liability predicated on

his official acts.” Nixon, 457 U.S. at 749; see also Trump,

144 S.Ct. at 2332 (“Presidential immunity is required for

official acts to ensure that the President’s decisionmaking

is not distorted by the threat of future litigation stemming

from those actions.”). This precedent was established in

the seminal case of Nixon v. Fitzgerald, wherein this

Court held that this wide-spanning, unqualified form of

absolute immunity is “a functionally mandated incident

of the President’s unique office,” id. at 749, which extends

to acts within the “outer perimeter of [the President’s]

official responsibility,” id. at 756. The ‘outer perimeter’

includes all presidential conduct that is “not manifestly or

palpably beyond [the President’s authority].” Trump, 144

S.Ct. at 2333 (citation omitted). This test is an objective

one—it is focused on the nature of the act in question, not

the alleged motive behind it. Nixon, 457 U.S. at 756 (“[A]n

inquiry into the President’s motives could not be avoided

under the kind of ‘functional’ theory asserted both by

respondent and the dissent. Inquiries of this kind could be

17

highly intrusive.”); Trump, 144 S.Ct. at 2333 (“In dividing

official from unofficial conduct, courts may not inquire

into the President’s motives. Such an inquiry would

risk exposing even the most obvious instances of official

conduct to judicial examination on the mere allegation of

improper purpose, thereby intruding on the Article II

interests that immunity seeks to protect.”).

Here, no inquiry is necessary since Petitioner has

affirmatively pled that he is seeking to hold President

Trump liable for his “official acts.” Nixon, 457 U.S. at

749. In the Complaint, Petitioner squarely alleges that

“at all relevant times herein, [President Trump] acted

within the course and scope of [his] employment” as

President.1 Compl. at ¶47 (emphasis added). As a result

of this allegation, Petitioner’s claim incontrovertibly

falls within the purview of the Presidential immunity

doctrine. There is no daylight between Petitioner’s claim

that President Trump was “acting within the course and

scope of his employment” as President and the inevitable

conclusion that he was acting within the “outer perimeter

of his official responsibility.” Nixon, 457 U.S. at 756.

Accordingly, by Petitioner’s own admission, Presidential

immunity is an absolute bar to his claim.

The upshot is that, if permitted to proceed forward,

Petitioner’s claim would effectively destroy the doctrine

1. Petitioner also identified President Trump in the caption

of the Complaint as “DONALD J. TRUMP, former President

of the United States.” Compl. at 1 (emphasis added), and, in the

“Parties” section, stated that “[a]t all relevant times herein,

defendant Donald J. Trump was President of the United States

. . . was head of the Executive Branch of the Federal Government

. . . [and] was responsible for the oversight and enforcement of the

laws of the United States.” Id. at ¶ 37.

18

of Presidential immunity. Not only would this upend

decades of Supreme Court jurisprudence and eradicate

an important historical doctrine, but it would also have a

devastating practical impact on “not only the President

and his office but also the Nation that the Presidency

was designed to serve.” Nixon, 457 U.S. at 753; see also

Trump, 144 S.Ct. at 2341 (“[T]he interests that underlie

Presidential immunity seek to protect not the President

himself, but the institution of the Presidency.”). This Court

has proclaimed that Presidential immunity serves “the

greatest public interest,” Nixon, 457 U.S. at 752; that it

“safeguard[s] the independence and effective functioning of

the Executive Branch,” Trump, 144 S.Ct. at 2331; and that

it “enable[s] the President to carry out his constitutional

duties without undue caution,” id. Absent this critical

protection, the Nation would face “unique risks,” Nixon,

457 U.S. at 751, which could “seriously cripple the proper

and effective administration of public affairs as entrusted

to the executive branch of the government,” id. at 745

(citation omitted). This outcome must be avoided absent

the most compelling and urgent justification, of which

Petitioner has none.

Therefore, to maintain the integrity of Presidential

immunity and the important policy considerations behind

it, Plaintiff ’s Bivens claim must be dismissed. Plaintiff ’s

request that this Court craft a new remedy tailored to the

circumstances of his case must also be denied for this same

reason, and because he has not even attempted to explain

how such a remedy is justified by law. See also Devillier v.

Texas, 601 U.S. 285, 286 (2024) (“Constitutional rights do

not typically come with a built-in cause of action to allow

for private enforcement in courts.”).

19

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

A lina Habba

Counsel of Record

Habba Madaio &

A ssociates LLP

112 West 34th Street,

17th & 18th Floors

New York, NY 10120

(908) 869-1188

ahabba@habbalaw.com

Attorney for Respondents