Amicus Curiae Brief — Howard Goldey, Associate Warden, et al., Petitioners v. Andrew Fields, III, et al.

No. 24-809

In the Supreme Court of the United States

HOWARD GOLDEY, ASSOCIATE WARDEN, ET AL.,

PETITIONERS

v.

ANDREW FIELDS, III, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

SARAH M. HARRIS

Acting Solicitor General

Counsel of Record

YAAKOV M. ROTH

Acting Assistant Attorney

General

CURTIS E. GANNON

Deputy Solicitor General

VIVEK SURI

Assistant to the Solicitor

General

BARBARA L. HERWIG

MELISSA N. PATTERSON

JAYNIE LILLEY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the judicially inferred cause of action this

Court recognized in Bivens v. Six Unknown Named

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

(1971), should be extended to claims that prison officials

violated the Eighth Amendment by using excessive

force against inmates.

(I)

STATEMENT OF COMPLIANCE WITH

SUPREME COURT RULE 37.2

The counsel of record for all parties received timely

notice of the United States’ intent to file this amicus curiae brief at least ten days before the due date.

(II)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Introduction................................................................................... 2

Statement ...................................................................................... 3

Argument....................................................................................... 6

A. This Court’s cases foreclose creating a new Bivens

action for prisoners’ excessive-force claims ................... 6

B. The court of appeals’ decision warrants review and

summary reversal............................................................ 14

Conclusion ................................................................................... 17

TABLE OF AUTHORITIES

Cases:

Ajaj v. Fozzard, No. 23-2219,

2024 WL 4002912 (7th Cir. Aug. 30, 2024) ....................... 15

Alexander v. Sandoval, 532 U.S. 275 (2001) ....................... 17

Alsop v. Federal Bureau of Prisons, No. 22-1933,

2022 WL 16734497 (3d Cir. Nov. 7, 2022) ......................... 15

Anderson v. Fuson, No. 23-5342,

2024 WL 1697766 (6th Cir. Feb. 1, 2024),

cert. denied, 145 S. Ct. 449 (2024) ..................................... 15

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................... 4

Bell v. Wolfish, 441 U.S. 520 (1979) ....................................... 8

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) .............. 1, 2, 6, 7

Bush v. Lucas, 462 U.S. 367 (1983) ........................................ 7

Calcutt v. FDIC, 598 U.S. 623 (2023) ................................... 16

Carlson v. Green, 446 U.S. 14 (1980) ............................... 7, 11

Chambers v. Herrera, 78 F.4th 1100 (9th Cir. 2023) .......... 14

Chappell v. Wallace, 462 U.S. 296 (1983) .......................... 7, 9

Correctional Services Corp. v. Malesko,

534 U.S. 61 (2001) ..................................................... 7, 12, 16

(III)

IV

Cases—Continued:

Page

Davis v. Passman, 442 U.S. 228 (1979) ................................. 7

DeVillier v. Texas, 601 U.S. 285 (2024) ................................. 6

Edwards v. Gizzi, 107 F.4th 81 (2d Cir. 2024) .................... 14

Egbert v. Boule, 596 U.S. 482 (2022) .................... 1-3, 7-14, 16

FDIC v. Meyer, 510 U.S. 471 (1994) ...................................... 7

Farrington v. Diah, No. 22-13281,

2023 WL 7220003 (11th Cir. Nov. 2, 2023) ....................... 15

Greene v. United States, No. 21-5398,

2022 WL 13638916 (6th Cir. Sept. 13, 2022) ..................... 15

Hernández v. Mesa, 589 U.S. 93 (2020)................................. 7

Johnson v. Terry, 119 F.4th 840 (11th Cir. 2024) ........... 2, 15

Jones v. Bock, 549 U.S. 199 (2007) ....................................... 10

Jones v. North Carolina Prisoners’ Labor

Union, Inc., 433 U.S. 119 (1977) ................................... 9, 15

Landis v. Moyer, No. 22-2421,

2024 WL 937070 (3d Cir. Mar. 5, 2024)............................. 15

Lewis v. Sullivan, 279 F.3d 526 (7th Cir. 2002) ................. 10

Millbrook v. United States, 569 U.S. 50 (2013) .................. 11

Minneci v. Pollard, 565 U.S. 118 (2012) ......................... 7, 11

Patton v. Blackburn, No. 21-5995,

2023 WL 7183139 (6th Cir. May 2, 2023) .......................... 15

Schweiker v. Chilicky, 487 U.S. 412 (1988) ........................... 7

Schweiker v. Hansen, 450 U.S. 785 (1981) .......................... 16

Silva v. United States, 45 F.4th 1134 (10th Cir. 2022)....... 14

Turner v. Safley, 482 U.S. 78 (1987) .................................. 8, 9

United States v. Stanley, 483 U.S. 669 (1987) ...................... 7

Watkins v. Carter, No. 22-40477, 2023 WL 4312771

(5th Cir. July 3, 2023) ......................................................... 15

Whitley v. Albers, 475 U.S. 312 (1986)......................... 3, 9, 13

Wilkie v. Robbins, 551 U.S. 537 (2007) .................................. 7

V

Cases—Continued:

Page

Woodford v. Ngo, 548 U.S. 81 (2006) ................................... 10

Ziglar v. Abbasi, 582 U.S. 120 (2017) ........................ 7, 10, 13

Constitution, statutes, regulation, and rule:

U.S. Const.:

Amend. IV .................................................................... 2, 16

Amend. V ............................................................................ 7

Amend. VIII......................................................... 1-7, 13-15

Federal Prison Oversight Act,

Pub. L. No. 118-71, 138 Stat. 1492 .................................... 11

§ 2(a), 138 Stat. 1494 (to be codified at 5 U.S.C.

413(e)(2)(B)(xi)) .......................................................... 11

§ 2(a), 138 Stat. 1496 (to be codified at 5 U.S.C.

413(e)(3)(A)(i)(I)) ....................................................... 11

§ 2(b), 138 Stat. 1501 ....................................................... 11

Federal Tort Claims Act, 28 U.S.C. 2680(h) ....................... 11

Prison Litigation Reform Act of 1995,

28 U.S.C. 1915A .................................................................... 4

42 U.S.C. 1983 .......................................................................... 7

28 C.F.R. 542.10(a) ................................................................ 12

Sup. Ct. R. 12.6 ...................................................................... 13

Miscellaneous:

Admin. Office of the U.S. Courts, Federal Judicial

Caseload Statistics tbl. C-2 (Mar. 31, 2024), https://

www.uscourts.gov/data-news/data-tables/2024/

03/31/federal-judicial-caseload-statistics/c-2

(Mar. 3, 2025)....................................................................... 15

In the Supreme Court of the United States

No. 24-809

HOWARD GOLDEY, ASSOCIATE WARDEN, ET AL.,

PETITIONERS

v.

ANDREW FIELDS, III, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE UNITED STATES

This case presents the question whether a court may

rely on Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), to create a new

cause of action for claims that prison officials violated

the Eighth Amendment by using excessive force against

inmates. The United States has a substantial interest

in the resolution of that question. Bivens suits, which

are brought against federal officials in their personal

capacities, can chill and disrupt officials’ performance of

their duties, including in the prison-administration context. And the Department of Justice often represents

the defendants in Bivens cases. The United States has

participated as amicus curiae or as counsel to a party in

many of this Court’s Bivens cases, from Bivens itself to

Egbert v. Boule, 596 U.S. 482 (2022). The government’s

decision to take the unusual step of filing an uninvited

(1)

2

certiorari-stage amicus brief reflects its views about the

severity of the court of appeals’ error and the gravity of

the decision’s potential consequences.

INTRODUCTION

This is the rare case that calls for summary reversal.

In Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), this Court

created a damages action for private plaintiffs to sue

certain federal officers over certain Fourth Amendment

violations. For the last 45 years, however, the Court has

consistently refused to extend Bivens to any new contexts. See Egbert v. Boule, 596 U.S. 482, 491 (2022).

Creating new Bivens actions is a “disfavored judicial activity” now that the Court has recognized that the Constitution vests the power to create new causes of action

in Congress. Ibid. (citation omitted). This Court has

thus framed the test for extending Bivens to any new

context at all as whether “there is a rational reason to

think that” Congress, not the courts, “should decide

whether to provide for a damages remedy,” and has said

the answer will be Congress “in most every case.” Ibid.

Nonetheless, the decision below extended Bivens to

a concededly new context: a claim that prison officials

violated the Eighth Amendment by using excessive

force against an inmate. Three other courts of appeals

have issued published decisions refusing to extend

Bivens to Eighth Amendment excessive-force claims.

Another court has aptly described the decision below as

“a far-afield outlier.” Johnson v. Terry, 119 F.4th 840,

851 (11th Cir. 2024).

The decision below warrants not merely review, but

summary reversal. The Fourth Circuit’s decision flouts

this Court’s precedents, which required the Fourth Circuit to ask only whether there is “any rational reason

3

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

‘weigh the costs and benefits of allowing a damages action

to proceed.’ ” Egbert, 596 U.S. at 496 (citation omitted).

Reasons abound here. Most importantly, courts lack

the institutional competence to set policies relating to

the administration of prisons. And the creation of a

damages remedy could deter prison staff from properly

carrying out their important and challenging duties by

subjecting them to civil liability for “decisions necessarily made in haste, under pressure, and frequently

without the luxury of a second chance.” Whitley v. Albers, 475 U.S. 312, 320 (1986).

STATEMENT

Respondent Andrew Fields, an inmate in a federal

prison, alleges that petitioners, officials at the prison,

violated the Eighth Amendment by using excessive

force against him. See Pet. App. 3a. Invoking Bivens,

he sued petitioners (among others) for damages in the

U.S. District Court for the Western District of Virginia.

See Pet. App. 3a. Before any of the defendants had been

served, the court dismissed the complaint, holding that

respondent lacks a cause of action. See id. at 38a-55a.

The court of appeals affirmed in part, reversed in part,

and remanded, holding that respondent’s Bivens claims

may proceed.*

1. Because this case comes to this Court at the

pleading stage, we describe the facts as alleged in the

* Fields also named the Federal Bureau of Prisons as a defendant.

See Pet. App. 40a. Although the Bureau is nominally a respondent

in this Court, see Sup. Ct. R. 12.6, it has waived its response to the

petition for a writ of certiorari because the district court dismissed

the claims against it, see Pet. App. 55a, and those claims are not at

issue here, see Pet. 12. This brief uses the term “respondent” to

refer to the individual respondent, Fields.

4

complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 677-680

(2009). Respondent alleges that he was placed in administrative segregation in a special housing unit after

he violated prison rules. See Pet. App. 3a. A scuffle broke

out en route to the unit, and respondent attempted to

assault the officers escorting him. See ibid. The officers placed him in ambulatory restraints and took him to

the unit in a wheelchair. See id. at 4a.

Prison officials periodically checked on respondent

while he was held in the special housing unit. See Pet.

App. 4a. Respondent alleges that, during those checks,

prison staff would “physically abuse” him, “including by

ramming his head into the concrete cell wall and hitting

[him] with a fiberglass security shield.” Ibid. He also

alleges that he later attempted to file an administrative

grievance, but that “prison staff denied him access to

the necessary forms.” Ibid.

2. Respondent sued petitioners in federal court,

seeking damages from them on the ground that they

had violated the Eighth Amendment by using excessive

force against him. See Pet. App. 4a. In accordance with

the Prison Litigation Reform Act of 1995 (PLRA), 28

U.S.C. 1915A, which requires early judicial screening of

prisoner complaints, the court dismissed the complaint

before petitioners were served. Pet. App. 38a-55a.

The district court determined, as relevant here, that

respondent lacked a cause of action under Bivens. Pet.

App. 45a-55a. The court explained that, in deciding

whether to recognize a Bivens action, a court should ask

whether the claim arises in a “new context” and, if so,

whether “special factors counsel hesitation” in extending Bivens to that context. Id. at 48a (brackets and citation omitted). The court “ha[d] no difficulty in concluding that [respondent’s] claims arise in a new con-

5

text, as th[is] Court has never ruled that a damages

remedy exists for claims of excessive force by [prison]

officers against an inmate.” Id. at 49a. The court then

identified multiple factors that counsel hesitation in extending Bivens to that context. See id. at 51a-53a. It

noted, for example, that Congress has not “provide[d] a

damages remedy” to prisoners, that “courts have long

been committed to avoiding judicial intervention in the

running of prisons,” and that prisoners may resort to

“alternative remedies.” Ibid.

3. A divided panel of the Fourth Circuit affirmed in

part, reversed in part, and remanded. Pet. App. 1a-38a.

As relevant here, the court concluded that respondent’s

Eighth Amendment excessive-force claim may proceed.

Id. at 5a-21a. The court accepted respondent’s concession that “this case arises in a new context” for a Bivens

claim, id. at 8a, but then concluded that special factors

do not counsel hesitation in extending Bivens to that

context, see id. at 9a-21a. The court dismissed concerns

about judicial interference with prison administration,

stating that “the impact on prison officials’ discharge of

their duties will be minimal.” Id. at 16a. The court also

discounted the availability of alternative administrative

remedies, reasoning that respondent “lacked access to

alternative remedies because prison officials deliberately thwarted his access to them.” Id. at 17a (emphasis

omitted). Finally, the court recognized that Congress’s

decision not to include a damages remedy in the PLRA

“may counsel against extending Bivens in cases brought

by inmates in federal prisons as a general matter.” Id.

at 19a. But it concluded that, because respondent has

“alleged that no alternative remedy was in fact available,” the PLRA “does not counsel against extending

Bivens in this case.” Id. at 19a-20a.

6

Judge Richardson dissented. Pet. App. 23a-37a. He

identified three reasons not to extend Bivens to Eighth

Amendment excessive-force claims: (1) “Congress has

actively legislated in this area but has not enacted a

statutory cause of action for money damages”; (2) “an

alternative remedial scheme exists for aggrieved federal prisoners like [respondent]”; and (3) extending

Bivens could have deleterious “systemic consequences”

for prisons. Id. at 26a, 30a, 34a.

Petitioners sought rehearing, with the support of the

United States as amicus curiae, but the court of appeals

denied the petition. Pet. App. 56a-57a.

ARGUMENT

The court of appeals seriously erred in creating a

new damages remedy under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), for Eighth Amendment excessive-force

claims brought by federal prisoners. The decision below clearly contravenes this Court’s recent Bivens precedents, conflicts with the published decisions of three

other courts of appeals, and threatens significant harm

to the government and its employees. This Court

should summarily reverse.

A. This Court’s Cases Foreclose Creating A New Bivens

Action For Prisoners’ Excessive-Force Claims

1. “Constitutional rights do not typically come with

a built-in cause of action to allow for private enforcement in courts.” DeVillier v. Texas, 601 U.S. 285, 291

(2024). “Instead, constitutional rights are generally invoked defensively in cases arising under other sources

of law, or asserted offensively pursuant to an independent cause of action designed for that purpose.” Ibid.

7

Such causes of action are ordinarily created through

statutes enacted by Congress. See, e.g., 42 U.S.C. 1983.

In Bivens, this Court created a cause of action

against federal narcotics agents who had allegedly manacled the plaintiff, threatened his family, and searched

his house without a warrant. See 403 U.S. at 397. Over

the following decade, the Court created two additional

causes of action for constitutional claims: one for a Fifth

Amendment equal-protection claim brought by a former congressional staffer, see Davis v. Passman, 442

U.S. 228 (1979), and one for an Eighth Amendment

inadequate-medical-care claim brought by a prisoner,

see Carlson v. Green, 446 U.S. 14 (1980).

Since then, this Court has come to recognize that

courts lack the power to fashion new causes of action.

See Egbert v. Boule, 596 U.S. 482, 491 (2022); Alexander

v. Sandoval, 532 U.S. 275, 286 (2001). “At bottom, creating a cause of action is a legislative endeavor.” Egbert, 596 U.S. at 491. The Court has accordingly described the creation of a Bivens action as “a disfavored

judicial activity” and an “extraordinary act that places

great stress on the separation of powers.” Id. at 491,

497 n.3 (citations omitted). In the 45 years since Carlson, this Court has consistently rejected every proposed Bivens action it has considered. See id. at 493494, 498-499; Hernández v. Mesa, 589 U.S. 93, 113-114

(2020); Ziglar v. Abbasi, 582 U.S. 120, 140 (2017); Minneci v. Pollard, 565 U.S. 118, 126 (2012); Wilkie v. Robbins, 551 U.S. 537, 562 (2007); Correctional Services

Corp. v. Malesko, 534 U.S. 61, 74 (2001); FDIC v. Meyer,

510 U.S. 471, 486 (1994); Schweiker v. Chilicky, 487 U.S.

412, 425 (1988); United States v. Stanley, 483 U.S. 669,

678 (1987); Bush v. Lucas, 462 U.S. 367, 390 (1983);

Chappell v. Wallace, 462 U.S. 296, 304 (1983).

8

2. This Court has applied a two-step test for whether

to allow a Bivens claim to proceed. See Egbert, 596 U.S.

at 492. First, the Court asks whether the case presents

“a new Bivens context”—i.e., whether the case “meaningfully” differs from the three cases in which the Court

has recognized a Bivens remedy, including because

“there are ‘potential special factors that previous Bivens

cases did not consider.’ ” Ibid. (brackets and citation

omitted). Second, if so, the Court asks whether “ ‘special factors’ ” indicate that courts are “at least arguably

less equipped than Congress” to weigh the costs and

benefits of a damages remedy. Ibid. (citation omitted).

“If there is even a single ‘reason to pause before applying Bivens in a new context,’ a court may not recognize

a Bivens remedy.” Ibid. (citation omitted). Thus, those

“two 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.” Ibid.

Respondent “concedes that this case arises in a

new context.” Pet. App. 8a. The only question, then, is

“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.’ ”

Egbert, 596 U.S. at 496 (citation omitted). And there are

many good reasons to think that Congress is better

equipped than the courts to decide whether to create a

damages remedy for prisoners’ excessive-force claims.

“[T]he operation of our correctional facilities is peculiarly the province of the Legislative and Executive

Branches of our Government, not the Judicial.” Bell v.

Wolfish, 441 U.S. 520, 548 (1979). “Running a prison is

an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources.”

Turner v. Safley, 482 U.S. 78, 84-85 (1987).

9

Federal courts lack the legal authority and institutional competence to address those problems. Although

courts “must take cognizance of the valid constitutional

claims of prison inmates,” they owe substantial “deference to the appropriate prison authorities.” Turner, 482

U.S. at 84-85. The serious “separation of powers concerns” raised by the “ ‘involvement of the federal courts

in affairs of prison administration’ ” provide ample reason not to extend Bivens to excessive-force claims

brought by prisoners. Id. at 85, 89 (citation omitted); cf.

Egbert, 596 U.S. at 494 (declining to extend Bivens to

“the border-security context” because “ ‘foreign policy

and national security are rarely proper subjects for judicial intervention’ ”) (citation omitted); Chappell, 462

U.S. at 301 (declining to extend Bivens to military cases

because “[ j]udges are not given the task of running the

Army”) (citation omitted).

Fashioning a damages remedy for excessive-force

claims brought by prisoners would also have an “impact

on governmental operations systemwide.” Egbert, 596

U.S. at 491 (citation omitted). “Prison life” contains “the

ever-present potential for violent confrontation and conflagration.” Jones v. North Carolina Prisoners’ Labor

Union, Inc., 433 U.S. 119, 132 (1977). As a result, prison

staff must often use force against prisoners in the course

of their duties. See Whitley v. Albers, 475 U.S. 312, 320322 (1986). Exposing prison officials to civil litigation

and financial liability could lead them to hesitate when

making urgent decisions about using force to ensure

prison security and prisoner safety. At a minimum, a

court cannot reliably “predict the ‘systemwide’ consequences” of making prison staff personally liable for using excessive force. Egbert, 596 U.S. at 493 (citation

10

omitted). “That uncertainty alone is a special factor

that forecloses relief.” Ibid.

Compounding those problems, prisoner suits pose a

distinctive risk of abuse. Prisoner suits “account for an

outsized share of filings” in federal court. Woodford v.

Ngo, 548 U.S. 81, 94 n.4 (2006). This Court has noted

that “[m]ost of these cases”—including those “claiming

civil rights violations”—“have no merit.” Jones v. Bock,

549 U.S. 199, 203 (2007). “Prisoners have ample time on

their hands and have demonstrated a proclivity for frivolous suits to harass their accusers, the guards, and others who caused or manage their captivity.” Lewis v.

Sullivan, 279 F.3d 526, 528-529 (7th Cir. 2002). The

demonstrated risk of “harassing litigation” provides yet

another reason to pause before extending Bivens to this

new context. Egbert, 596 U.S. at 499 (citation omitted).

The PLRA, too, weighs against extending Bivens to

excessive-force claims brought by federal prisoners. In

that statute, Congress “made comprehensive changes

to the way prisoner abuse claims must be brought in

federal court.” Abbasi, 582 U.S. at 148. Although “Congress had specific occasion to consider the matter of

prisoner abuse and to consider the proper way to remedy those wrongs,” it did not “provide a standalone

damages remedy.” Id. at 148-149. That choice provides

“sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy” in prisonerabuse cases. Ibid. (citation omitted).

Separately, “a court may not fashion a Bivens remedy if Congress already has provided, or has authorized

the Executive to provide, ‘an alternative remedial structure.’ ” Egbert, 596 U.S. at 493 (citation omitted). Here,

Congress and the Executive have each provided alternative remedies for prisoners who claim to have been

11

abused by prison staff. In the Federal Tort Claims Act,

28 U.S.C. 2680(h), Congress has waived the United

States’ sovereign immunity from certain tort claims, including claims of assault or battery by law-enforcement

officers. See, e.g., Millbrook v. United States, 569 U.S.

50, 53-54 (2013) (assault-and-battery claims against federal correctional officers). This Court has previously

cited the availability of similar tort remedies in refusing

to extend Bivens to suits against employees of privately

operated federal prisons. See Minneci, 565 U.S. at 126131. And although the Court concluded in Carlson that

“the Bivens remedy is more effective than the FTCA

remedy,” 446 U.S. at 20, the Court has since made clear

that alternative procedures foreclose Bivens suits even

if a court believes that they are “not as effective,” Egbert, 596 U.S. at 498 (citation omitted).

Congress recently provided further remedies in the

Federal Prison Oversight Act, Pub. L. No. 118-71, 138

Stat. 1492, which was signed into law on the same day

that the court of appeals issued the decision below.

Among other things, that statute directs the Inspector

General of the Department of Justice to inspect federal

prisons and to assess “[c]redible allegations of incidents

involving the excessive use of force * * * against incarcerated people.” § 2(a), 138 Stat. 1494 (to be codified at

5 U.S.C. 413(e)(2)(B)(xi)). The statute also establishes

an Ombudsman responsible for receiving and investigating prisoner complaints, including those concerning

“abuse.” § 2(a), 138 Stat. 1496 (to be codified at 5 U.S.C.

413(e)(3)(A)(i)(I)). Those provisions will not take effect

until the Inspector General receives certain appropriated funds, see § 2(b), 138 Stat. 1501, but they show that

Congress has continued to address prison abuse through

12

administrative remedies rather than damages suits

against officers in their individual capacities.

The Bureau has adopted its own Administrative

Remedy Program, under which a prisoner who faces

abuse may file a grievance. See 28 C.F.R. 542.10(a).

The Court has previously identified the existence of that

particular program as a reason not to extend Bivens to

a new type of prisoner suits. See Malesko, 534 U.S. at

74. And the Court recently reiterated that the availability of a regulatory grievance procedure established

by the United States Border Patrol had “independently

foreclose[d] a Bivens action” against a Border Patrol

agent. Egbert, 596 U.S. at 497.

3. The court of appeals’ contrary reasoning directly

conflicts with this Court’s precedents.

The court of appeals sought to justify its extension of

Bivens by limiting that extension to “the circumstances

presented here”—a “rare case” in which “rogue” prison

officers allegedly subjected a prisoner to “egregious

physical abuse with no imaginable penological benefit,”

“in clear violation of prison policy,” and in which other

prison officials then allegedly “thwarted the inmate’s

access to alternative remedies.” Pet. App. 12a-13a. But

“a court should not inquire * * * whether Bivens relief

is appropriate in light of the balance of circumstances in

the particular case.” Egbert, 596 U.S. at 496 (citation

omitted). “A court inevitably will impair governmental

interests, and thereby frustrate Congress’ policymaking role, if it applies the special factors analysis at such

a narrow level of generality.” Ibid. (brackets, citation,

and internal quotation marks omitted). “Rather, under

the proper approach, a court must ask more broadly if

there is any reason to think that judicial intrusion into

a given field might be harmful or inappropriate.” Ibid.

13

(brackets, citation, and internal quotation marks omitted). There are many such reasons here. See pp. 8-12,

supra.

The court of appeals also stated that this case “resembles Carlson,” in which this Court extended Bivens

to a claim that prison staff had violated the Eighth

Amendment through deliberate indifference to a prisoner’s medical needs. Pet. App. 15a. But this Court has

already determined that claims of abuse or excessive

force meaningfully differ from claims of inadequate

medical care. See Abbasi, 582 U.S. at 146-149. Prison

staff who use force typically must “balanc[e] competing

institutional concerns for the safety of prison staff or

other inmates,” and decisions about the use of force

tend to be “in haste,” “under pressure,” and “without

the luxury of a second chance.” Whitley, 475 U.S. at

320. Carlson in any event “carries little weight because

it predates [this Court’s] current approach to implied

causes of action.” Egbert, 596 U.S. at 500. Accordingly,

a plaintiff “cannot justify a Bivens extension based on

‘parallel circumstances’ with * * * Carlson.” Id. at 501

(citation omitted).

The court of appeals declared that “the impact [of a

Bivens remedy] on prison officials’ discharge of their

duties will be minimal.” Pet. App. 16a. But “[t]he Bivens

inquiry does not invite federal courts to independently

assess the costs and benefits of implying a cause of action.” Egbert, 596 U.S. at 496. Courts must instead ask

whether there is a “rational reason” to think that “Congress is better suited” to balance those costs and benefits. Ibid. (emphasis omitted). The court of appeals

identified no plausible basis to believe that the courts

are better positioned than Congress to weigh the pros

14

and cons of a damages remedy against prison officials

who allegedly use excessive force.

Finally, the court of appeals found it significant that,

when respondent attempted to file an administrative

grievance, prison staff allegedly “denied him access to

the necessary forms.” Pet. App. 4a. But this Court has

explained that the potential inadequacy or unavailability of an alternative remedial scheme in a given case

does not justify fashioning a Bivens remedy. Rather, if

“Congress or the Executive has created a remedial process that it finds sufficient,” “courts cannot second-guess

that calibration by superimposing a Bivens remedy.”

Egbert, 596 U.S. at 498. Bivens, moreover, focuses on

“deterring the unconstitutional acts of individual officers.” Ibid. (citation omitted). The administrative-remedy

process deters wrongdoing by prison officials as a general matter, even if the officials deny a prisoner access

to that process in a particular case.

B. The Court Of Appeals’ Decision Warrants Review And

Summary Reversal

1. The court of appeals’ decision warrants this Court’s

review because it creates a circuit conflict on a recurring and important question of federal law that carries

significant consequences for federal officials’ ability to

discharge their duties. Three other courts of appeals—

the Second, Ninth, and Tenth, Circuits—have refused

in published opinions to extend Bivens to Eighth Amendment excessive-force claims. See Edwards v. Gizzi, 107

F.4th 81, 82 (2d Cir. 2024) (per curiam); Chambers v.

Herrera, 78 F.4th 1100, 1107-1108 (9th Cir. 2023); Silva

v. United States, 45 F.4th 1134, 1141 (10th Cir. 2022).

Five more—the Third, Fifth, Sixth, Seventh, and Eleventh Circuits—have reached the same conclusion in unpublished opinions. See Landis v. Moyer, No. 22-2421,

15

2024 WL 937070, at *2-*3 (3d Cir. Mar. 5, 2024); Alsop

v. Federal Bureau of Prisons, No. 22-1933, 2022 WL

16734497, at *3 (3d Cir. Nov. 7, 2022); Watkins v. Carter,

No. 22-40477, 2023 WL 4312771, at *1 (5th Cir. July 3,

2023); Anderson v. Fuson, No. 23-5342, 2024 WL 1697766,

at *2-*4 (6th Cir. Feb. 1, 2024), cert. denied, 145 S. Ct.

449 (2024); Patton v. Blackburn, No. 21-5995, 2023 WL

7183139, at *2-*3 (6th Cir. May 2, 2023); Greene v.

United States, No. 21-5398, 2022 WL 13638916, at *3

(6th Cir. Sept. 13, 2022); Ajaj v. Fozzard, No. 23-2219,

2024 WL 4002912, at *2 (7th Cir. Aug. 30, 2024); Farrington v. Diah, No. 22-13281, 2023 WL 7220003, at

*1-*2 (11th Cir. Nov. 2, 2023). The decision below has

thus been described, correctly, as “a far-afield outlier.”

Johnson v. Terry, 119 F.4th 840, 851 (11th Cir. 2024).

And the question presented arises frequently. During the 12-month period ending March 31, 2024 (the

most recent period for which statistics are available),

prisoners filed more than 19,000 civil-rights suits in district courts, accounting for more than 5% of all civil

cases. See Admin. Office of the U.S. Courts, Federal

Judicial Caseload Statistics tbl. C-2 (Mar. 31, 2024).

Many of those suits involve Eighth Amendment claims

of excessive force under Bivens. As the citations in the

preceding paragraph show, nine courts of appeals (the

court below and the eight courts on the other side of the

circuit conflict) have encountered such claims in just the

past three years.

The question presented is important. “[T]he realities of running a penal institution are complex and difficult.” Jones, 433 U.S. at 126. The court of appeals’

extension of Bivens adds to those challenges by countermanding the political branches’ policy judgments

about the proper remedies for wrongdoing in prisons,

16

by confronting prison officials with the risk of civil liability when making decisions about how to maintain

prison security, and by exposing those officials to the

threat of harassing litigation. The court’s decision also

undermines the separation of powers by usurping a

function, the creation of new causes of action, that the

Constitution reserves to Congress.

2. The decision satisfies this Court’s usual criteria

for summary reversal: “the law is settled and stable,

the facts are not in dispute, and the decision below is

clearly in error.” Schweiker v. Hansen, 450 U.S. 785,

791 (1981) (Marshall, J., dissenting). For the past 45

years, this Court has “consistently rejected invitations

to extend Bivens.” Malesko, 534 U.S. at 70. Further

factual development would not affect the outcome; the

availability of a Bivens remedy does not depend on the

circumstances of the “particular case.” Egbert, 596 U.S.

at 496 (citation omitted). Nor can there be any serious

doubt about the proper resolution of this case under this

Court’s precedents. Cf. Calcutt v. FDIC, 598 U.S. 623,

629 (2023) (summarily reversing decision that violated

“[f ]undamental principles of administrative law”) (citation omitted).

If this Court does not summarily reverse the court of

appeals’ decision, it should grant plenary review on the

first question presented by the petition for a writ of certiorari. As in Egbert, this Court “need not reconsider

Bivens itself ” to resolve this case, 596 U.S. at 502, and

thus need not address the second question presented,

Pet. I, 22-27. Rather, this Court could reiterate that no

further extensions of Bivens are permitted, and consider whether to overrule Bivens altogether in the context of a Fourth Amendment case that more closely resembles Bivens itself.

17

CONCLUSION

This Court should grant the petition for a writ of certiorari and summarily reverse the judgment of the court

of appeals.

Respectfully submitted.

SARAH M. HARRIS

Acting Solicitor General

YAAKOV M. ROTH

Acting Assistant Attorney

General

CURTIS E. GANNON

Deputy Solicitor General

VIVEK SURI

Assistant to the Solicitor

General

BARBARA L. HERWIG

MELISSA N. PATTERSON

JAYNIE LILLEY

Attorneys

MARCH 2025