Opposition 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, et al.,

v.

ANDREW FIELDS, III,

Petitioners,

Respondent.

_______________________

On Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Fourth Circuit

_______________________

BRIEF IN OPPOSITION

_______________________

John Frederick Preis

UNIVERSITY OF RICHMOND

SCHOOL OF LAW

203 Richmond Way

University of Richmond,

VA 23173

Danny Zemel

Counsel of Record

THE KRUDYS LAW FIRM,

PLC

919 E. Main Street

Suite 2020

Richmond, VA 23211

(804) 774-7950

dzemel@krudys.com

Kelsi Brown Corkran

Elizabeth R. Cruikshank

INSTITUTE FOR

CONSTITUTIONAL

ADVOCACY AND

PROTECTION

GEORGETOWN UNIVERSITY

LAW CENTER

600 New Jersey Ave., NW

Washington, DC 20001

Counsel for Respondents

QUESTION PRESENTED

Whether the Fourth Circuit erred in recognizing a

narrow extension of Bivens v. Six Unknown Named

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

388 (1971), to the “rare” case in which “rogue”

frontline prison officials committed “egregious

physical abuse with no imaginable penological

benefit” and then “intentionally withheld the

administrative remedies that the executive branch

has implemented to redress such violations.” Pet.

App. 12a.

(i)

ii

TABLE OF CONTENTS

Question Presented ......................................................i

Table Of Authorities.................................................. iii

Introduction ................................................................. 1

Statement Of The Case ............................................... 2

I.

Factual Background ........................................ 2

II. Procedural History .......................................... 4

Reasons For Denying The Petition ............................. 7

I.

The Fourth Circuit’s Decision Is Correct. ...... 7

A. The Fourth Circuit Did Not Approve A

Bivens Action For All Excessive Force

Claims............................................................. 7

B. The Fourth Circuit Carefully Followed

This Court’s Prior Bivens Cases. ............... 9

1.

Alternative Remedies. ........................ 10

2.

Congressional Action.......................... 13

3.

Systemwide Consequences................ 17

II. The Fourth Circuit’s Decision Does Not

Implicate Any Circuit Split. .......................... 21

III. The Decision Below Is Not Important. ......... 26

IV. Summary Reversal Is Not Warranted. ......... 27

Conclusion ................................................................. 30

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Acuna v. Jastal,

No. 5:24-CT-03097, 2025 WL 1296215

(E.D.N.C. May 2, 2025) ..................................... 21

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ........................................... 20

Bulger v. Hurwitz,

62 F.4th 127 (4th Cir. 2023) ................. 10, 18, 25

Bulger v. United States Bureau of Prisons,

65 F.3d 48 (5th Cir. 1995) ................................. 13

Calcutt v. Fed. Deposit Ins. Corp.,

598 U.S. 623 (2023) ..................................... 28, 29

Cale v. Johnson,

861 F.2d 943 (6th Cir. 1988) ............................. 14

Caraballo-Sandoval v. Honsted,

35 F.3d 521 (11th Cir. 1994) ............................. 13

Carlson v. Green,

446 U.S. 14 (1980) ............................................. 13

Chambers v. Herrera,

78 F.4th 1100 (9th Cir. 2023) ........................... 23

Cleavinger v. Saxner,

474 U.S. 193 (1985) ........................................... 13

iv

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ....................................... 15, 23

Edwards v. Gizzi,

107 F.4th 81 (2d Cir. 2024) ......................... 21, 22

Egbert v. Boule,

596 U.S. 482 (2022) ............... 7, 10, 11, 17, 23, 29

Farmer v. Brennan,

511 U.S. 825 (1994) ........................................... 13

Frazier v. Dubois,

922 F.2d 560 (10th Cir. 1990) ........................... 14

Goines v. Valley Cmty. Servs. Bd.,

822 F.3d 159 (4th Cir. 2016) ............................... 2

Hernandez v. Mesa,

589 U.S. 93 (2020) ................................. 11, 17, 25

Johnson v. Terry,

119 F.4th 840 (11th Cir. 2024) ................... 24, 25

Jones v. Bock,

549 U.S. 199 (2007) ........................................... 14

Jones v. Dir.,

No. 3:23-cv-249, 2024 WL 4206789 (E.D.

Va. Sept. 16, 2024) ............................................ 26

Kornegay v. Linter,

No. 5:24-CV-137, 2024 WL 5298779

(N.D.W. Va. Nov. 20, 2024) ........................... 9, 26

Lyons v. U.S. Marshalls,

840 F.2d 202 (3d Cir. 1988) .............................. 14

v

Major League Baseball Players Ass’n v.

Garvey,

532 U.S. 504 (2001) ........................................... 27

Martin v. Hamilton,

No. 7:22-cv-00567, 2025 WL 495369

(W.D. Va. Feb. 13, 2025) ........................... 8, 9, 26

Mays v. Smith,

70 F.4th 198 (4th Cir. 2023) ............................. 18

Montana v. Hall,

481 U.S. 400 (1987) ........................................... 28

Office of Personnel Mgmt. v. Richmond,

496 U.S. 414 (1990) ........................................... 27

Ross v. Blake,

578 U.S. 632 (2016) ..................................... 12, 15

Rowland v. Matevousian,

121 F.4th 1237 (10th Cir. 2024) ....................... 24

Schweiker v. Hansen,

450 U.S. 785 (1981) ..................................... 28, 29

Silva v. United States,

45 F.4th 1134 (10th Cir. 2022) ......................... 23

Tate v. Harmon,

54 F.4th 839 (4th Cir. 2022) ............................. 18

United States v. Wells,

519 U.S. 482 (1997) ........................................... 14

vi

Vaughn v. Brown,

No. 7:22-cv-00178, 2025 WL 952392

(W.D. Va. Mar. 28, 2025) .................................... 9

Wilkie v. Robbins,

551 U.S. 537 (2007) ........................................... 12

Wilkins v. May,

872 F.2d 190 (7th Cir. 1989) ............................. 14

Ziglar v. Abbasi,

582 U.S. 120 (2017) ......................... 17, 18, 19, 29

Statutes

5 U.S.C. § 413(d) ..................................................... 17

28 U.S.C. § 1915A(a) ................................................ 4

42 U.S.C. § 1997e(a) ............................................... 15

42 U.S.C. § 1997e(e) ............................................... 14

Pub. L. No. 118-71, 138 Stat. 1492 (July 25,

2024) ............................................................ 16, 17

Other Authorities

28 C.F.R. § 552.20 ............................................ 19, 20

Pet. for Writ of Certiorari, Egbert v. Boule,

No. 21-147 (July 30, 2021), cert. granted

in part, 142 S. Ct. 457 (2021)............................ 29

Pet. for Writ of Certiorari, Ferreyra v.

Hicks, No. 23-324 (Sept. 22, 2023), cert.

denied, 144 S. Ct. 555 (2024) ............................ 27

vii

Pet. for Writ of Certiorari , Henning v.

Snowden, No. 23-976 (Mar. 4, 2024),

cert. denied, 145 S. Ct. 137 (2024) .............. 27, 29

S. Ct. R. 10(a) ......................................................... 21

S. Ct. R. 10(c) ...................................................... 7, 26

S. Shapiro, K. Geller, T. Bishop, E.

Hartnett, & D. Himmelfarb, Supreme

Court Practice § 5.12(c)(3) (10th ed.

2013) .................................................................. 28

INTRODUCTION

In its decision below, the Fourth Circuit carefully

applied this Court’s Bivens precedents to recognize a

narrow cause of action where egregious physical

abuse serving no conceivable penological purpose is

combined with a subsequent denial of all access to

administrative remedies. The Fourth Circuit

emphasized that its decision was limited to those

circumstances, and district courts have heeded those

instructions. As a result, no court has applied the

Fourth Circuit’s decision to authorize a cause of action

in any circumstances beyond the rare facts presented

here.

Rather than address the Fourth Circuit’s actual

holding, petitioners instead ask the Court to grant

certiorari to determine “[w]hether an implied cause of

action exists for Eighth Amendment excessive force

claims,” writ large. Pet. I. That mischaracterization of

the holding below is reason alone to deny the petition:

The first question presented by the petition is not

presented by this case.

Petitioners’ second question simply asks the Court

to overrule Bivens altogether. Id. But Bivens has stood

for more than half a century and this Court expressly

declined to revisit it just a few years ago. It should do

the same here.

The Fourth Circuit thoughtfully followed this

Court’s instructions on how to analyze Bivens claims

in a concededly novel and limited set of circumstances.

This case does not merit this Court’s review, and it

certainly does not meet the high threshold for

summary reversal.

(1)

2

STATEMENT OF THE CASE

I.

Factual Background

In 2021, Mr. Fields was incarcerated at the U.S.

Penitentiary in Lee County, Virginia. Pet. App. 2a. On

November 10, 2021, Mr. Fields went to lunch without

bringing his movement pass, which was required

when he left his housing unit. Pet. App. 3a. When he

returned from lunch, the prison’s lieutenant ordered

Mr. Fields to be sent the special housing unit (SHU),

which was known as “the hole” or “the trap,” to “[g]et

his head right.” Id.; CA4 JA11.

On the way to the SHU, once Mr. Fields was out of

sight of the prison lieutenant’s office, Defendant

Robbins “began punching” Mr. Fields “in the face with

closed fists repeatedly” until he “dropped to the floor.”1

CA4 JA13. Robbins then “stomped” on Mr. Fields with

1 The Fourth Circuit incorrectly stated in its opinion that Mr.

Fields “allegedly tried to assault the officers escorting him.” Pet.

App. 3a-4a (citing CA4 JA29). Mr. Fields did not allege that. He

appended to his complaint an incident report prepared by prison

officials that accused him of assault, but Mr. Fields explicitly

refuted the prison officials’ claim as “falsified.” CA4 JA13; see

also id. (alleging that, in fact, Mr. Fields “was walking[,] going to

(S.H.U.),” when Officer Robbins began assaulting him). Mr.

Fields appended the incident report not because it was truthful,

but because it showed how the defendants attempted to cover up

their misconduct by writing “a falsified incident report.” Id.

Accordingly, the prison officials’ claim of assault must be rejected

at this stage. See Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159,

168 (4th Cir. 2016) (“Treating the contents of [a document

prepared by defendants] as true simply because it was attached

to or relied upon in the complaint, even though the plaintiff

relied on it for purposes other than truthfulness, would be

contrary to the concept of notice pleading and would enable

parties to hide behind untested, self-serving assertions.”

(internal citations omitted)).

3

“steel toe boots,” and “kicked and punched” Mr. Fields

“in the face repeatedly.” Id. Several other officers

joined in. Id. Mr. Fields was knocked partially

unconscious. Id.

Mr. Fields regained consciousness as he was being

brought to the SHU in a wheelchair. CA4 JA13. Once

at the SHU, he was placed inside an observation cell,

where he was secured with “ambulatory restraints

and leg restraints around his ankles.” CA4 JA14.

Defendant Mullins and several other officers then

repeatedly assaulted Mr. Fields. Id. They “pushed”

him and “shoved [him] face first” into the wall. Id.

They also slammed a security shield into his back and

rammed his “face into the wall,” knocking a tooth

loose. CA4 JA15. As he was being “smashed up

against the wall,” several officers punched him in the

face and kneed him in the groin. Id. One officer

applied extreme pressure to Mr. Fields’ leg as if he

“was trying to break” Mr. Fields’ ankle, while another

kicked him in the leg with steel toe boots. CA4 JA16.

Defendant Mullins declared, “I am going to kill you.”

Id.

Finally, before the officers left Mr. Fields’ cell, an

officer rammed the security shield into the back of Mr.

Fields’ head, again smashing Mr. Fields’ face “into the

wall at full impact.” CA4 JA16.

Over the next 24 hours, Defendants returned

several times to continue the abuse. Two hours later,

Defendant Mullins and several other officers returned

with a security shield and assembled in a formation.

CA4 JA17. They then “partially ran towards” Mr.

Fields and “rammed” the back of his head with the

shield, slamming his head into the wall. Id. Two hours

after that, they did it again. CA4 JA19. Defendant

4

Nicholous made additional threats about killing Mr.

Fields. CA4 JA20. The officers returned at least three

more times to assault or threaten Mr. Fields. CA4

JA20-23. At no point during these events did Mr.

Fields “pose[] a physical threat to the officers.” Pet.

App. 4a.

Mr. Fields later attempted to file a grievance

seeking administrative relief for Defendants’ violence

and threats. But his unit supervisors refused to

provide Mr. Fields the necessary grievance forms.

CA4 JA 26. Accordingly, he was “unable to pursue any

alternative remedies.” Pet. App. 4a. Having been

refused access to the prison’s administrative remedy

program, Mr. Fields sought judicial relief.

II.

Procedural History

In 2022, Mr. Fields filed suit pro se against

Defendants Mullins, Nicholous, and other officers

involved in the assaults. Before any Defendants were

served or entered an appearance, however, the district

court screened Mr. Fields’ complaint on the merits

under 28 U.S.C. § 1915A(a). See Pet. App. 39a. As to

Mr. Fields’ claim against the individual officers under

the Eighth Amendment, the court held that there was

no implied cause of action under Bivens. Pet. App. 54a.

Mr. Fields appealed the district court’s order only

as to the “individual officers who commit[ted] isolated

acts of abuse” against Mr. Fields. CA4 Reply Br. 1. Mr.

Fields expressly conceded that “a Bivens action may

not be brought against the BOP.” Id.

On July 25, 2024, the Fourth Circuit affirmed the

district court’s decision in part, and reversed in part.

Citing Mr. Fields’ concession, the court of appeals

affirmed the district court “in so far as it dismissed the

5

claims against the BOP and supervisory officers” who

were not “personally involved in the conduct alleged

in the complaint.” Pet. App. 13a, 22a. The court of

appeals made clear that Mr. Fields cannot proceed

against those defendants, and on remand, Mr. Fields

“cannot join supervisory officers under Rule 20.” Pet.

App. 13a.

As to the “front-line officers only,” the Fourth

Circuit reversed the district court. Id. The court

acknowledged “the limited availability of claims

under Bivens” in light of this Court’s more recent

guidance. Pet. App. 2a, 7a. The Fourth Circuit

recognized, however, that this Court specifically

“chose not to dispense with Bivens altogether,”

instead maintaining its well-established two-step

framework for evaluating when a Bivens claim may

proceed, either because it arises in a recognized

context, or because special factors do not counsel

against an extension. Pet. App. 7a.

Applying that framework, the Fourth Circuit

recognized that Mr. Fields’ Eighth Amendment claim

arose from the confluence of two sets of circumstances:

(1) “rogue” frontline officers committed “egregious

physical abuse with no imaginable penological

benefit,” and (2) prison officials “intentionally

withheld the administrative remedies that the

executive branch has implemented to redress such

violations.” Pet. App. 12a. The court noted that “[t]his

must be a rare case,” citing the government’s

concession that the type of abuse alleged “is rare,” and

that “no court (in this Circuit or otherwise) has ever

before been presented with a case” that also involved

the intentional complete denial of access to

administrative remedies. Pet. App. 12a, 18a. The

6

court concluded that this claim arose in a new context,

as Mr. Fields conceded. Pet. App. 8a.

Next, the court evaluated whether special factors

counseled against extending Bivens to that new

context. The Court recognized that special factors

often counsel against extending Bivens in the prison

context—namely, the BOP’s Administrative Remedy

Program, the Prison Litigation Reform Act, and the

potential for systemwide consequences. Pet. App. 9a.

The Court concluded, however, that these factors

applied differently in the “rare” circumstances of this

case. Pet. App. 12a. For example, the Court explained

that the ARP normally counsels against a Bivens

action because it reflects the Executive’s preferred

alternative remedy, even if the plaintiff disputes

whether the ARP provides full or adequate relief. Pet.

App. 17a. In this case, however, there was no dispute

about Congress’ chosen remedy: The problem was that

individual “officers intentionally subverted the

operation of the ARP,” denying Mr. Fields the very

remedy Congress had provided. Id. In such

circumstances, the “technical existence” of the ARP

does not counsel against a Bivens remedy. Id. Based

on the unusual circumstances present in this case, the

Fourth Circuit remanded the claim for further

proceedings in the district court, where Defendants

have now appeared.

Defendants sought rehearing and rehearing en

banc. On October 22, 2024, the Court denied

rehearing, with no judge requesting a vote on the

petition for rehearing en banc. Pet. App. 57a.

7

REASONS FOR DENYING THE PETITION

I.

The Fourth Circuit’s Decision Is Correct.

The Fourth Circuit’s decision is correct and does

not conflict with any of this Court’s decisions. See S.

Ct. R. 10(c). As the Fourth Circuit recognized, in most

cases, a Bivens cause of action will not be available

outside of the specific contexts previously recognized

by this Court. Pet. App. 7a. But this Court’s

precedents, from Bivens itself to the Court’s most

recent pronouncement in Egbert v. Boule, 596 U.S.

482 (2022), do not reject Bivens claims in other

contexts out of hand; they instead require courts to

consider whether an extension of Bivens is warranted,

or whether “special factors” counsel against it. Id. at

492. The Fourth Circuit did so and concluded in these

unusual circumstances that a modest extension—

limited to the “rare” case in which “egregious physical

abuse with no imaginable penological benefit” is

combined with the intentional withholding of

administrative remedies—was warranted. Pet.

App. 12a. That narrow decision was correct.

A. The Fourth Circuit Did Not Approve A

Bivens Action For All Excessive Force

Claims.

Before addressing what the Fourth Circuit did do,

it is important to clarify what the court did not do. The

linchpin of the petition, as well as the United States

amicus brief, is the claim that the Fourth Circuit

recognized a Bivens action for all Eighth Amendment

excessive force claims. See Pet. I (presenting the

question for review in this case as: “Whether an

implied cause of action exists for Eighth Amendment

excessive force claims.”); id. at 2-3, 10, 12-13, 27-28;

8

SG Amicus I, 1-2, 14-15. The Fourth Circuit did no

such thing.

The holding below is clear: “where an inmate

brings a claim against individual, front-line officers

who personally subjected the plaintiff to excessive

force in clear violation of prison policy, and where

rogue officers subsequently thwarted the inmate’s

access to alternative remedies,” a Bivens remedy

exists. Pet. App. 12a. (emphasis added). This holding

does not open the door to all prisoner excessive force

claims, but only to the unusual subset of those claims

against individual officers involving egregious

physical abuse and the intentional thwarting of an

inmate’s

access

to

alternatives

remedies.

Emphasizing this point, the court made clear the

claim presented was “narrow and discrete,” Pet. App.

15a, that its decision was based only on “the

circumstances presented here,” Pet. App. 13a, and

that this was a “rare case,” Pet. App. 12a; see also CA4

Oral Arg. at 28:40-43 (panel asking “why the case has

to [encompass all Eighth Amendment Bivens

claims]”); id. at 29:17-30:16 (panel asking whether the

cause of action should be for “Eighth Amendment

excessive force claims as a whole” or “a much

narrower one . . . when more than six BOP officers

were involved in not excessive force but extreme

excessive force and they also denied access to the

grievance procedures”).

Other courts have properly understood the

narrowness of the Fourth Circuit’s decision. For

example, in Martin v. Hamilton, No. 7:22-cv-00567,

2025 WL 495369, at *5 (W.D. Va. Feb. 13, 2025), a

district court rejected an extension of Bivens while

also “acknowledg[ing]” the Fourth Circuit’s decision in

9

Fields. Fields extended Bivens, the court observed,

only where a prisoner “lacked access to alternative

remedies because prison officials deliberately

thwarted his access to them.” Id. (quoting Fields, 109

F.4th at 274 (emphasis in original)). Because there

was “no such allegation in this case” the Court

rejected the requested extension. Id.; see also Vaughn

v. Brown, No. 7:22-cv-00178, 2025 WL 952392, at *4

(W.D. Va. Mar. 28, 2025) (declining to apply Fields to

a prisoner excessive force claim because the plaintiff

“has not alleged that officers intentionally stopped

him from filing a grievance and exhausting his

remedies”); Kornegay v. Linter, No. 5:24-CV-137, 2024

WL 5298779, at *6 (N.D.W. Va. Nov. 20, 2024)

(rejecting application of Fields because “the plaintiff

in this case did, in fact, utilize the ARP to file

grievances concerning the facts related to this

Complaint”), report and recommendation adopted sub

nom. Kornegay v. Lintner, No. 5:24-CV-137, 2024 WL

5116847 (N.D.W. Va. Dec. 16, 2024).

Given the narrowness of the Fourth Circuit’s

holding, as well as other courts’ understanding of that

narrowness, petitioners’ repeated claims that the

Fourth Circuit’s decision will have “far reaching” and

even “catastrophic” consequences are simply false.

Pet. at 3. Petitioners’ arguments are aimed at an

opinion that was never written and thus all miss the

mark. The Fourth Circuit issued a narrow decision in

a “rare case.”

B. The Fourth Circuit Carefully Followed

This Court’s Prior Bivens Cases.

Solely as to the unusual circumstances in Mr.

Fields’ case, the Fourth Circuit properly asked

whether “there are special factors indicating that the

10

Judiciary is at least arguably less equipped than

Congress to weigh the costs and benefits of allowing a

damages action to proceed.” Pet. App. 7a (quoting

Egbert, 596 U.S. at 492). Specifically, it addressed

three special factors: the availability of alternative

remedies, congressional action in this field, and the

systemwide consequences of permitting an action in

this context. The court acknowledged that, in the mine

run of cases, these factors will counsel against a

Bivens action. Pet. App. 9a-12a. But the court

properly concluded that “these factors do not apply

with equal force to Fields’ case,” given its unusual

circumstances, “and thus they do not bar his claim.”

Pet. App. 12a.

1. Alternative Remedies.

As the Fourth Circuit noted, its “prior cases

pointed to the BOP’s Administrative Remedy Program

(ARP)” as a “factor counseling against extending

Bivens.” Pet. App. 10a. This Court has made clear that

courts may not “second-guess” the “calibration” of an

administrative “remedial process” such as the ARP.

Egbert, 596 U.S. at 498. Accordingly, plaintiffs cannot

pursue a Bivens action simply because they question

“the sufficiency” of Congress’ chosen remedial scheme.

Bulger v. Hurwitz, 62 F.4th 127, 141 (4th Cir. 2023)

(rejecting the plaintiff’s argument that the “short

window of time” to use the ARP was inadequate); see

also Egbert, 596 U.S. at 497-98 (rejecting the

plaintiff’s argument that the grievance process did not

provide adequate opportunity for him to participate

and pursue judicial review).

Whether the ARP is adequate or appropriately

calibrated, however, is not the question here. Pet.

App. 17a (“By contrast, here, the ARP is not the

11

problem.”). Far from challenging the ARP, Mr. Fields

sought to use it to pursue administrative relief,

exactly as Congress intended. The problem “was the

intentional improper conduct of the individual

officers, which deprived Fields of access to the ARP.”

Pet. App. 17a. In light of those circumstances, the

Fourth Circuit concluded that, having “subverted the

operation of the ARP,” prison officials could not rely

on “its technical existence” to “bar Fields’s Bivens

claim.” Id.

That unusual factual circumstance distinguishes

this case from prior Fourth Circuit cases like Bulger.

In an opinion written by Judge Thacker—who also

joined the majority opinion in Fields—the court in

Bulger held that the ARP counseled against

recognizing a Bivens action because the plaintiff

challenged “the inadequacy of the ARP itself,”

claiming it was “not broad enough in that case to

provide the desired relief.” Pet. App. 17a (quoting

Bulger, 62 F.4th at 141). Here, in contrast, Mr. Fields

does not dispute that “[t]he system put in place by the

executive has the capacity to provide relief.” Id.

Rather, “when rogue officers thwart” a person’s

“access to alternative remedies, it is the officers’

conduct that interferes with the balance struck by the

existing remedial scheme.” Pet. App. 18a.

This Court’s precedent supports the distinction

drawn by the Fourth Circuit. Each time this Court has

considered alternative administrative remedial

structures in the context of Bivens, the administrative

remedies were actually available. See Egbert, 596 U.S.

at 497-98 (noting that the plaintiff took “advantage of

this grievance procedure, prompting a year-long

internal investigation”); Hernandez v. Mesa, 589 U.S.

12

93, 97 (2020) (noting that the “Department of Justice

conducted an investigation” into the cross-border

shooting); Wilkie v. Robbins, 551 U.S. 537, 552 (2007)

(“For each charge, in any event, Robbins had some

procedure to defend and make good his position. He

took advantage of some opportunities, and let others

pass.”). This Court has never held that the “technical

existence” of an alternative remedy in the abstract

constitutes a reason not to extend Bivens when, in

reality, officials deny access to that remedy. To the

contrary, in a different context, the Court has

recognized that “when prison administrators thwart

inmates from taking advantage of a grievance

process,” “such interference . . . renders the

administrative process unavailable.” Ross v. Blake,

578 U.S. 632, 644 (2016).

Petitioners, however, claim that the technical

existence of the ARP “should be the end of the

analysis.” Pet. 18. They argue that courts cannot

question whether “the political branches’ preferred

alternative remedy is less effective than an individual

damages remedy.” Pet. 19. They insist that the Fourth

Circuit “misunderstood the relevant inquiry.” Pet. 1819.

To the contrary, the Fourth Circuit never

questioned whether the ARP is “less effective” than a

Bivens action; instead, it accepted that “[t]he system

put in place by the executive has the capacity to

provide relief to Fields.” Pet. App. 17a. It also noted

the government’s attempt to dispute factually

whether “Fields may have had access to and in fact

did access some administrative remedies.” Pet.

App. 18a. The court decided only that, based on the

allegations in the complaint, officials had rendered

13

the ARP entirely inoperable, such that it could not

“provide any remedy” to Mr. Fields. Pet. App. 17a.

Assuming the truth of those allegations at this stage,

the Fourth Circuit properly concluded that the ARP

does not counsel against a Bivens remedy; to the

contrary, a Bivens remedy “secures the objectives of

the wrongfully displaced remedial scheme.” Pet.

App. 18a.

2. Congressional Action.

Next, the Fourth Circuit considered whether

congressional action suggests that Congress made an

intentional choice not to create a remedial cause of

action. In particular, the court noted that “the PLRA

may counsel against extending Bivens” in many

federal-prisoner cases. Pet. App. 19a. The Fourth

Circuit has long “given great weight” to the PLRA and

declined to recognize Bivens actions that would

contradict the policies embodied in that law. Pet.

App. 9a.

The Fourth Circuit recognized here, however, that

the PLRA—enacted in 1996, years after the original

Bivens trio of decisions—did not foreclose Bivens

remedies entirely. Pet. App. 19a. That is significant

because Congress enacted the PLRA against the

backdrop of a widespread judicial assumption that

Bivens actions would be available—including to

federal prisoners, as recognized in Carlson v. Green,

446 U.S. 14 (1980); see also Cleavinger v. Saxner, 474

U.S. 193 (1985); Farmer v. Brennan, 511 U.S. 825

(1994).2 And, as this Court has recognized, Congress

2 The circuit courts at the time were in agreement on this, as

well. See Bulger v. United States Bureau of Prisons, 65 F.3d 48

(5th Cir. 1995) (due process Bivens claim by prisoner); Caraballo-

14

expects its statutes to be read in conformity with this

Court’s precedents.” United States v. Wells, 519 U.S.

482, 495 (1997).

Thus, when Congress passed the PLRA, Bivens

claims brought by federal prisoners were common,

and Congress created procedural requirements to

“reduce prisoner litigation, not do away with it

entirely.” Pet. App. 21a (emphasis in original); see also

Jones v. Bock, 549 U.S. 199, 204 (2007) (describing the

PLRA as “a variety of reforms designed to filter out

the bad claims and facilitate consideration of the

good”). The PLRA served to control the flow of

prisoner litigation, not eliminate it.

Importantly, the Fourth Circuit recognized that

the combination of circumstances in this case

precisely match the policies embodied in the PLRA.

First, the text of the PLRA explicitly contemplates

that prisoners will be able to bring lawsuits for

physical injuries. See 42 U.S.C. § 1997e(e) (“No

Federal civil action may be brought by a prisoner

confined in a jail, prison, or other correctional facility,

for mental or emotional injury suffered while in

custody without a prior showing of physical injury or

the commission of a sexual act.”). This “physical injury

requirement” perfectly describes the “egregious

Sandoval v. Honsted, 35 F.3d 521 (11th Cir. 1994) (First

Amendment and due process Bivens claims by prisoners); Frazier

v. Dubois, 922 F.2d 560 (10th Cir. 1990) (First Amendment and

due process Bivens claim by prisoner); Cale v. Johnson, 861 F.2d

943, 947 (6th Cir. 1988) (due process Bivens claim by prisoner),

abrogated on other grounds by Thaddeus–X v. Blatter, 175 F.3d

378 (6th Cir. 1999) (en banc); Wilkins v. May, 872 F.2d 190, 195

(7th Cir. 1989) (due process Bivens claim by arrestee); Lyons v.

U.S. Marshalls, 840 F.2d 202, 203 (3d Cir. 1988) (due process

challenge to pretrial detainee’s conditions of detention).

15

physical abuse with no imaginable penological

benefit” at issue in this case. Pet. App. 12a.

On top of that, the PLRA also contemplates that

prisoners will be able to bring lawsuits in federal court

when prison officials intentionally deny them access

to any alternative administrative remedy. See

42 U.S.C. § 1997e(a) (“No action shall be brought with

respect to prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner confined

in any jail, prison, or other correctional facility until

such administrative remedies as are available are

exhausted.”); see Ross, 578 U.S. at 644 (“[S]uch

interference with an inmate’s pursuit of relief renders

the administrative process unavailable.”). Again, this

perfectly describes this case, in which officials

“intentionally withheld the administrative remedies

that the executive branch has implemented to redress

such violations.” Pet. App. 12a.

In response, petitioners argue that because the

PLRA itself does not provide for a cause of action,

courts should infer from Congress’ “silence” that no

such cause of action is permitted. Pet. 20. But as

explained above, Congress did not need to create a

cause of action through the PLRA, as one was already

widely available at the time. Congress simply layered

the PLRA on top of the existing legal landscape,

adding rules and restrictions to existing causes of

action like Bivens. As a result, in Correctional Services

Corp. v. Malesko, 534 U.S. 61 (2001)—decided several

years after the enactment of the PLRA—this Court

continued to recognize that “[i]f a federal prisoner in

a BOP facility alleges a constitutional deprivation, he

may bring a Bivens claim against the offender

individual officer.” Id. at 71-72.

16

Finally, petitioners also invoke the Federal Prison

Oversight Act (“FPOA”), Pet. 20, which was enacted

on July 25, 2024—the very day the Fourth Circuit

issued its opinion in this case. See Pub. L. No. 118-71,

138 Stat. 1492 (July 25, 2024).

As an initial matter, the FPOA can be ignored

because it does not apply here. By its terms, the FPOA

does not become effective until 90 days after

“appropriations are made available to the Inspector

General of the Department of Justice,” which has not

yet happened. Id. § 2(b), 138 Stat. 1501. As a result,

the law simply is not relevant in this case.

But even in a future case where the FPOA is

operative and the lower courts have the opportunity

to consider it, petitioners overstate its impact. The

law’s primary effect is to enhance the Inspector

General’s existing authority to manage its agencies

and “detect and deter fraud, waste, and abuse in

Department programs and misconduct and

misconduct by Department personnel”3—functions

which the Inspector General has performed since

1989.4 Enhancing that authority does not suggest an

See History, Office of the Inspector General, Dep’t of Just.

http://justice.gov/doj/office-inspector-general.

4 For example, the FPOA specifies requirements for inspecting

BOP facilities pursuant to the Inspector General’s existing

authority. See Pub. L. No. 118-71, § 2(a) (adding 5 U.S.C.

§ 413(e)). The Inspector General of the Department of Justice

“shall conduct periodic inspections” that may be “announced or

unannounced.” Id. (adding §§ 413(e)(2)(A)(i), 413(e)(3)(A)(iii)).

The Inspector General must issue reports on these inspections

and the BOP must respond to those reports and include a

corrective action plan. Id. (adding §§ 413(e)(2)(D),

413(e)(2)(F)(i)). Those reports and corrective action plans must

be made public. Id. (adding § 413(e)(2)(F)(ii)). And the Inspector

3

17

intention to curtail Bivens actions. In fact, the Office

of the Inspector General has comfortably existed

alongside Bivens remedies for over thirty-five years.

Even the FPOA’s establishment of an ombudsman,

on which petitioners focus, merely adds to the

authority of the Inspector General’s office already

contained in 5 U.S.C. § 413(d). The Ombudsman’s only

authority is to make recommendations, refer issues to

other agencies, and monitor ongoing issues. Pub. L.

No. 118-71, § 2(a) (adding 5 U.S.C. §§ 413(e)(3)(A),

413(e)(3)(D)). And, again, the Office of the

Ombudsman has not yet been created, as no funds

have been appropriated and the FPOA is not currently

effective. Accordingly, it does not undermine the

Fourth Circuit’s careful decision.

3. Systemwide Consequences.

Finally, the Fourth Circuit considered whether

extending Bivens to Mr. Fields’ case would lead to

“systemwide consequences.” Pet. App. 11a. In its

recent Bivens decisions, this Court has shown special

concern for causes of action that threaten important

policies, including in sensitive fields like national

security or the border. See Egbert, 596 U.S. at 494

(“[W]e reaffirm that a Bivens cause of action may not

lie where, as here, national security is at

issue.”); Hernandez, 589 U.S. at 113 (“Foreign policy

and national security decisions are delicate, complex,

and involve large elements of prophecy for which the

Judiciary has neither aptitude, facilities, nor

responsibility.” (cleaned up)); Ziglar v. Abbasi, 582

General may take further action to monitor the BOP’s

compliance with corrective action plans. Id. (adding

§ 413(e)(2)(F)(iii)).

18

U.S. 120, 140, 149 (2017) (declining to authorize

action challenging “high-level executive policy created

in the wake of a major terrorist attack on American

soil,” but remanding the abuse claims against

individual defendants). Neither national security, the

border, nor any similar concerns are implicated here.

Following this Court’s recent precedents, the

Fourth Circuit’s Bivens cases have additionally

considered “organizational policies, administrative

decisions, and economic concerns.” Pet. App. 11a; see

Tate v. Harmon, 54 F.4th 839, 841 (4th Cir. 2022)

(rejecting claim implicating policies about “the

temperature at which to keep cells, the level of

cleanliness . . . the adequacy of toilet paper and

toothbrushes, and the length and thickness of

mattresses”); Bulger, 62 F.4th at 133 (rejecting claim

requiring “[d]eterminations about the adequacy of a

particular facility to meet the medical needs of an

inmate”); Mays v. Smith, 70 F.4th 198, 206 (4th Cir.

2023) (rejecting claim implicating everyday

“discipline, transfer, and employment”).

This case threatens no such policies. Pet. App. 12a.

The Fourth Circuit ensured its narrow decision would

not affect the day-to-day work of federal prison

officers in several ways. Id.

First, the court made clear that the cause of action

concerns “only the individual conduct of rogue prison

officers.” Pet. App. 14a. Claims against “the BOP, the

warden, and the other supervisory officials” have been

dismissed. Pet. App. 12a.-13a. The court reiterated

that Mr. Fields “cannot join supervisory officers under

Rule 20” on remand. Pet. App. 13a; see Ziglar, 582

U.S. at 148 (rejecting claims that improperly

challenged warden’s “supervisory duties”).

19

Second, the court tailored the cause of action to

conduct “in clear violation of prison policy.” Pet.

App. 12a. BOP policy explicitly forbids the type of

malicious assault that occurred in this case. See 28

C.F.R. § 552.20. Thus, Mr. Fields’ claim is not a

“vehicle for altering an entity’s policy.” Ziglar, 582

U.S. at 140. To the contrary, Mr. Fields’ claim

“constitutes an appropriate attempt to ensure

compliance with the entity’s policy.” Pet. App. 15a

(emphasis in original).

But that is not all. The Fourth Circuit’s decision

addresses only the unusual circumstance in which

such “egregious physical abuse” is paired with the

complete denial of access to the ARP. As the

government

conceded,

that

combination

of

circumstances is unprecedented; there is no case, in

this Circuit or otherwise, where “the grievance

process was withheld from the inmate” on top of this

kind of extreme physical abuse. CA4 Oral Arg. at

30:53-31:51; see Pet. App. 18a (“As the government

conceded at oral argument, no court (in this Circuit or

otherwise) has ever before been presented with a case

in which one of the allegations was that the grievance

process was intentionally withheld from the inmate.”).

Accordingly, the narrow cause of action does not

threaten systemwide consequences.

In response, petitioners contend that officers must

“employ force and restrain prisoners” as they did in

Mr. Fields’ case “in the ordinary course of work.” Pet.

21. The United States similarly argues that

recognizing a cause of action here could lead front-line

officers to “hesitate” when making the decision to use

force “to ensure prison security and prisoner safety.”

SG Amicus 9. But this decision in no way limits an

20

officer’s ability to “gain control of the inmate, to

protect and ensure the safety of inmates, staff, and

others, to prevent serious property damage and to

ensure institution security and good order.” 28 C.F.R.

§ 552.20. The BOP’s policy proscribes gratuitous use

of force—force unrelated to any imaginable

penological purpose. Id. Thus, contrary to petitioners’

contention, this decision does not address or affect

“the ordinary course” of federal prison administration.

Pet. 3. The circumstances at issue here—egregious

uses of force for no conceivable penological purpose,

combined with the denial of access to remedies—are

simply not part of the ordinary course of prison

administration.5

Petitioners also argue that allowing Mr. Fields’

case to proceed would “open the door to a multitude”

of excessive force cases. Pet. 11. To the contrary, as

the government acknowledged below, the vicious and

repeated physical abuse in this case was a “rare”

instance of “extreme” misconduct. CA4 Oral Arg. at

27:30-35. In the panel’s words, “[i]f the officers’

conduct alleged here is a frequent occurrence in

prisons across the country, it would be a telling

indictment of the American carceral system.” Pet.

App. 12a. On top of that, the decision below does not

apply where officials do not thwart all access to the

ARP. Accordingly, fears of endless litigation are

unfounded—again, in the nine months since Fields

was issued, not once has it been applied to approve a

5 Moreover, any uncertain cases at the boundaries are shielded

by the defense of qualified immunity, which provides officers

“breathing room” to make reasonable mistakes. Ashcroft v. alKidd, 563 U.S. 731, 743 (2011). This simply is not one of those

cases.

21

cause of action.6 The Fourth Circuit’s narrow decision

is correct.

II.

The Fourth Circuit’s Decision Does Not

Implicate Any Circuit Split.

In addition to being correct, the Fourth Circuit’s

decision does not warrant review because it implicates

no circuit split. See S. Ct. R. 10(a). Petitioners base

their asserted circuit split on four court of appeals

decisions that are easily distinguishable from this

case.

Second Circuit. The Second Circuit’s per curiam

decision in Edwards v. Gizzi, 107 F.4th 81 (2d Cir.

2024), is fundamentally different. Unlike Mr. Fields,

the plaintiff did not allege that the defendants

subsequently “withheld the administrative remedies

that the executive branch has implemented to redress

such violations.” Pet. App. 12a. The claim in Edwards

thus would have failed in the Fourth Circuit, as well.

In addition, the decision in Edwards consists of

three sentences that simply affirm, without

explanation, the district court’s holding that the

plaintiff lacked a cause of action under Bivens. Id.

at 82. Even apart from the lack of reasoning, the first

of those sentences renders the decision irrelevant

here: The plaintiff “sought damages from courtsecurity officers and deputy U.S. marshals for using

6 The only case that even comes close is Acuna v. Jastal, No. 5:24-

CT-03097, 2025 WL 1296215, at *3 (E.D.N.C. May 2, 2025),

which cited Fields when it concluded, in a single sentence, that

an Eighth Amendment excessive force claim was “not clearly

frivolous” for purposes of initial PLRA screening. The court gave

no view about whether, on the merits, a Bivens cause of action

would be authorized.

22

excessive force while restraining him in a courtroom.”

Id. That claim presented a “doubly new Bivens

context,” id. at 85 (Park, J., concurring), that bears

little resemblance to Mr. Fields’ claim that prison

guards subjected him to “egregious physical abuse

with no imaginable penological benefit” and

subsequently denied his access to remedies. Pet. 12a,

14a-15a.

Indeed, Judge Robinson expressly limited her

Edwards concurrence to “this specific scenario” where

the plaintiff asserted excessive force claims “based on

how [court-security officers] responded to a public

courtroom outburst.” Id. at 88-89 (Robinson, J.,

concurring). And not a word of her opinion suggests

even hypothetical agreement with petitioners’

position here—as petitioners essentially conceded

when they cited her concurrence solely for the

proposition that this Court has never overruled

Bivens. See Pet. 14.

Petitioners are left with only Judge Park’s

concurring opinion as even arguably supporting their

position. But one brief paragraph in one judge’s

concurrence cannot create a circuit split.

In any event, Judge Park did not purport to

address the circumstances of this case, either. He

simply concluded that because the plaintiff alleged

that the defendants “assaulted him in the course of

their official duties,” the FTCA provides an

alternative remedy, foreclosing a cause of action

under Bivens. Id. at 86 (Park, J., concurring). Judge

Park’s reasoning, moreover, is shaky at best given this

Court’s precedent finding it “‘crystal clear’ that

Congress intended the FTCA and Bivens to serve as

‘parallel’ and ‘complementary’ sources of liability.”

23

Malesko, 534 U.S. at 68 (citing Carlson, 446 U.S. at

19-20); see also Egbert, 596 U.S. at 524 n.7

(Sotomayor, J., concurring) (noting “[t]his Court does

not endorse” the argument that the FTCA can serve

as an alternative remedy for Bivens purposes).

Ninth Circuit. Chambers v. Herrera, 78 F.4th

1100 (9th Cir. 2023), also involved a plaintiff who “was

aware of the [BOP’s] grievance procedures but chose

not to use them[.]” Pet. 16 (emphasis added); see also

Chambers, 78 F.4th at 1108 (“[A]s [the plaintiff]

concedes, he both was aware of the preexisting BOP

prisoner grievance procedures and declined to use

them.”). The case does not present a circuit split for

the same reason as Edwards—the Fourth Circuit does

not permit a Bivens claim to proceed under those

circumstances, either. See Pet. App. 10a, 16a-17a.

Tenth Circuit. Silva v. United States, 45 F.4th

1134 (10th Cir. 2022), has the same flaw. The plaintiff

did not allege that the defendants thwarted his access

to the ARP; his argument instead was that the ARP is

not an alternative remedial scheme foreclosing Bivens

relief because the ARP is regulatory in nature and not

congressionally mandated. See id. at 1141. The Tenth

Circuit rejected this argument, holding that the

plaintiff’s Eighth Amendment excessive force claim

was “foreclosed by the availability of the BOP

Administrative Remedy Program to address his

complaint.” Silva, 45 F.4th at 1142 (emphasis added).

The Fourth Circuit agrees: an Eighth Amendment

excessive force claim under Bivens is foreclosed if the

plaintiff had access to the ARP. See Pet. App. 16a-17a;

Mr. Fields’ claim proceeded only because it was the

“rare case” of egregiously excessive force where the

24

defendant prison guards intentionally “thwarted the

inmate’s access” to the ARP. Pet. App. 12a.

The Tenth Circuit recognized this distinction in

Rowland v. Matevousian, 121 F.4th 1237 (10th Cir.

2024). The plaintiff in Rowland attempted to rely on

the Fourth Circuit’s decision below to support his

argument that an alternative remedial program’s

existence is not enough on its own to counsel against

a Bivens extension. The Tenth Circuit correctly

rejected this argument, explaining that the Fourth

Circuit held only that “the administrative remedial

program was not enough because the prison officials

withheld

and

deliberately

thwarted

the

administrative remedies that the executive branch

had implemented to redress such violations.” Id.

at 1244 n.3 (internal quotation marks omitted).

Because the plaintiff in Rowland had “availed himself

of the Administrative Remedy Program twice,” the

Fourth Circuit’s decision below provided no help to

him. Id.

Eleventh Circuit. Petitioners’ final case is

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

which did not involve an Eighth Amendment

excessive force claim at all. See id. at 852 (noting that

the plaintiff abandoned his excessive force claim).

Petitioners characterize Johnson as “launch[ing] a

broadside at the Fourth Circuit’s opinion,” Pet. 16, but

Johnson’s brief discussion of the decision below, see

119 F.4th at 850-51, is nothing more than dicta. The

Eleventh Circuit simply criticized the Fourth Circuit’s

decision in a prefatory description of “Bivens Law

Through the Years and Today,” id. at 846, before

proceeding to consider an entirely different question:

whether the plaintiff’s failure-to-protect and

25

deliberate indifference claims presented a new Bivens

context, and if so, whether to extend Bivens to those

specific claims, id. at 853-62.

Petitioners nonetheless assert that Johnson

establishes a “methodological” split with the Fourth

Circuit because the Eleventh Circuit rejected the

plaintiff’s argument that Bivens should extend to his

failure-to-protect and deliberate indifference claims in

light of his inability to access the ARP. See Pet. 16-17.

Petitioners’ attempt to create a split by conflating

distinct Bivens contexts should be rejected. This Court

has been clear that Bivens contexts must be defined

and analyzed according to their own particular facts.

See, e.g., Hernandez, 589 U.S. at 103.

Here, the Fourth Circuit did not permit Mr. Fields’

excessive force claim to proceed solely because the

ARP was intentionally withheld from him. It also

relied on the fact that Mr. Fields’ claim involves

“egregious physical abuse with no imaginable

penological benefit” that violated prison policy. Pet.

App. 12a, 13a-15a. The failure-to-protect and

deliberate indifference claims in Johnson, by contrast,

challenged medical care and housing decisions in

ways that threatened systemwide prison policies. 119

F.4th at 844-46. Indeed, Johnson’s failure-to-protect

claim against the warden would be squarely

foreclosed in the Fourth Circuit under Bulger. See 62

F.4th at 140-41; Pet. App. 13a-14a.

In sum, none of Petitioners’ cited cases

demonstrates a circuit split. In each case, the courts

of appeals faithfully apply existing Bivens precedent

to the factually unique cases that come before them.

This Court’s review is unwarranted.

26

III.

The Decision Below Is Not Important.

In addition to not implicating a circuit split and

being correct, the decision below does not present any

important question worthy of the Court’s review. See

S. Ct. R. 10(c). The government previously conceded

that the decision addresses a “rare case,” Pet.

App. 12a, and as explained above, supra pp. 7-9,

petitioners argue otherwise only by misstating the

Fourth Circuit’s holding. Confirming the narrowness

of the decision below, counsel has found no decision

adjudicating a similar claim since the decision below

was issued.

Meanwhile, a number of recent decisions have

expressly distinguished Fields in the course of

rejecting Bivens actions. For example, multiple lower

courts have distinguished Fields in excessive force

cases where the ARP was accessible. See, e.g., Martin,

2025 WL 495369, at *5-6 (distinguishing Fields and

rejecting Bivens remedy where prisoner did not allege

prison officials intentionally thwarted his access to

ARP); Kornegay, 2024 WL 5298779, at *5-7 (no Bivens

remedy in new context where prisoner used ARP);

Jones v. Dir., No. 3:23-cv-249, 2024 WL 4206789, at

*5-6 (E.D. Va. Sept. 16, 2024) (case presented new

context and availability of ARP counseled against

extending Bivens). These decisions are consistent with

the government’s acknowledgment at oral argument

below that “if the court extended Bivens, it would be

extending it to the narrow facts and circumstances of

this case.” CA4 Oral Arg. at 30:30-39. This Court’s

review is not warranted for a decision that has not

been used to adjudicate any other claim since it was

issued.

27

Petitioners also assert that the question of

whether to recognize a Bivens action is “inherently

important” because it “implicates separation-ofpowers questions that go to the core of our

constitutional framework.” Pet. 27. This Court has

rejected similar attempts to cast Bivens as

automatically cert.-worthy before. See Pet. for Writ of

Certiorari at 14, 31, Henning v. Snowden, No. 23-976

(Mar. 4, 2024) (urging review because “Bivens should

be overruled altogether” and [t]he limits on Bivens

reflect separation-of-powers principles that do not

vary with the circuit in which a case arises”), cert.

denied, 145 S. Ct. 137 (2024); Pet. for Writ of

Certiorari at 2, Ferreyra v. Hicks, No. 23-324 (Sept.

22, 2023) (claiming the Fourth Circuit “casually”

expanded Bivens), cert. denied, 144 S. Ct. 555 (2024).

This case implicates no broader separation-of-powers

concerns; and indeed, the Fourth Circuit carefully

considered such concerns in line with the Court’s

precedent.

Finally, the United States wrongly claims that the

decision below threatens “policies relating to the

administration of prisons.” SG Amicus 3. Tellingly,

the government never even attempts to point to any

legitimate policy the rogue officers’ actions were—or

could possibly be—in service of. To the contrary, as

the Fourth Circuit recognized, the alleged misconduct

was in “clear violation of prison policy.” Pet. App. 12a.

That decision does not merit review.

IV.

Summary Reversal Is Not Warranted.

This Court should also reject the United States’

request for summary reversal. SG Amicus 16.

Summary reversal is an “extraordinary remedy.”

Major League Baseball Players Ass’n v. Garvey, 532

28

U.S. 504, 512-513 (2001) (Stevens, J., dissenting); see

Office of Personnel Mgmt. v. Richmond, 496 U.S. 414,

422 (1990) (“Summary reversals of courts of appeals

are unusual under any circumstances”). It requires

this Court to decide a case without the benefit of full

briefing and argument. See Montana v. Hall, 481 U.S.

400, 407 (1987) (Marshall, J., dissenting). And it

departs from this Court’s traditional role in resolving

important questions of law and maintaining

uniformity in the lower courts, rather than merely

correcting alleged errors. See S. Shapiro, K. Geller, T.

Bishop, E. Hartnett, & D. Himmelfarb, Supreme

Court Practice § 5.12(c)(3) (10th ed. 2013) (“[E]rror

correction . . . is outside the mainstream of the Court’s

functions.”).

The standard for summary reversal is accordingly

high. It is a “rare disposition, usually reserved by this

Court for situations in which 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).

This case falls far short that high bar. As discussed

above, the Fourth Circuit’s decision is not clearly in

error—to the contrary, it carefully applied this Court’s

instructions in novel factual circumstances. No court,

including the Fourth Circuit, has construed the

decision below to apply beyond these limited

circumstances.

Notably, the United States fails to cite a single

case where this Court summarily reversed a Bivens

decision issued by a court of appeals. Instead, the

United States cites just two case arising in vastly

different contexts. In the first, Calcutt v. Fed. Deposit

Ins. Corp., 598 U.S. 623 (2023), the Sixth Circuit

29

determined that the Federal Deposit Insurance

Corporation (“FDIC”) made two legal errors in

adjudicating the petitioner’s case, but then affirmed

the FDIC’s sanctions on grounds other than those

invoked by the agency. Id. at 624. Meanwhile, in

Schweiker, the Second Circuit estopped the Social

Security Administration from requiring a claimant’s

compliance with its own regulations. 450 U.S. at 78890.

This case bears no resemblance to either case cited

by the United States, and it does not come close to

meeting the exceedingly high threshold for summary

reversal. This Court should reject the United States’

request.

*

*

*

At bottom, petitioners’ disagreement is not with

the decision below, but rather with Bivens itself. The

petition explicitly requests that the Court grant the

case to “reconsider Bivens” altogether. Pet. 13.

Petitioners are far from the first defendants to request

that extraordinary step. See Pet. for Writ of Certiorari

at I, Egbert, No. 21-147 (July 30, 2021) (seeking

review of question 3: “[w]hether this Court should

reconsider Bivens”), cert. granted in part, 142 S. Ct.

457 (2021) (limiting review to questions 1 and 2); Pet.

for Writ of Certiorari at 31, Henning, No. 23-976

(urging review because “Bivens should be overruled

altogether”), cert. denied 145 S. Ct. 137 (2024). This

Court has specifically declined to overturn Bivens in

several recent cases. See Ziglar, 582 U.S. at 134

(noting that the opinion is “not intended to cast doubt

on the continued force, or even the necessity, of Bivens

in the search-and-seizure context,” and citing

“powerful reasons to retain it”); Egbert, 596 U.S. at

30

502 (“[T]o decide the case before us, we need not

reconsider Bivens itself.”). There is no reason to

change course here.

CONCLUSION

For the foregoing reasons, the Court should deny

the petition.

Respectfully submitted,

John Frederick Preis

UNIVERSITY OF RICHMOND

SCHOOL OF LAW

203 Richmond Way

University of Richmond,

VA 23173

Danny Zemel

Counsel of Record

THE KRUDYS LAW FIRM,

PLC

919 E. Main Street

Suite 2020

Richmond, VA 23211

(804) 774-7950

dzemel@krudys.com

Kelsi Brown Corkran

Elizabeth R. Cruikshank

INSTITUTE FOR

CONSTITUTIONAL

ADVOCACY AND

PROTECTION

GEORGETOWN UNIVERSITY

LAW CENTER

600 New Jersey Ave., NW

Washington, DC 20001

Counsel for Respondents

MAY 2025