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

Supreme Court briefMay 27, 2025

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No. 24-809

In the

Supreme Court of the United States

HOWARD GOLDEY, ASSOCIATE WARDEN, et al.,

Petitioners,

ANDREW FIELDS, III, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fourth Circuit

PETITIONERS’ REPLY BRIEF

William M. Jay

Goodwin Procter LLP

1900 N Street NW

Washington, DC 20036

James J. O’Keeffe IV

Counsel of Record

MichieHamlett, PLLC

110 Franklin Road SE

Roanoke, VA 24011

(540) 491-0634

jokeeffe@michiehamlett.com

Counsel for Petitioners

376778

(800) 274-3321 • (800) 359-6859

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .............................................i

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

I. The Fourth Circuit is “a far-afield outlier.” ........... 2

II. The decision below is wrong.................................. 6

III. This case is important ......................................... 9

CONCLUSION ......................................................... 12

TABLE OF CITED AUTHORITIES

Page(s)

Cases:

Acuna v. Jastal,

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

(E.D.N.C. May 2, 2025) .................................. 2, 12

Ajaj v. Fozzard,

No. 23-2219, 2024 WL 4002912

(7th Cir. Aug. 30, 2024) ....................................... 3

Alsop v. Fed’l Bureau of Prisons,

No. 22-1933, 2022 WL 16734497

(3d Cir. Nov. 7, 2022) ........................................... 2

Anderson v. Fuson,

No. 23-5342, 2024 WL 1697766

(6th Cir. Feb. 1, 2024) .......................................... 2

Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics,

403 U.S. 388 (1971) ......................... 1, 2, 4-7, 9-11

Calderon-Velasquez v. Mears,

No. 22-CV-692 (E.D. Va. Apr. 11, 2025) ........ 2, 11

Carlson v. Green,

446 U.S. 14 (1980) ............................................ 4, 7

Chambers v. Herrera,

78 F.4th 1100 (9th Cir. 2023) .......................... 2, 3

Dixon v. Royal Live Oaks Acad. of

the Arts & Scis. Charter Sch.,

No. 9:22-CV-04198, 2024 WL 4284667

(D.S.C. Sept. 25, 2024) ......................................... 6

iii

Edwards v. Gizzi,

107 F.4th 81 (2d Cir. 2024) ...................... 2, 3, 4, 5

Egbert v. Boule,

596 U.S. 482 (2022) ........................ 1, 2, 4, 5, 9, 10

Farrington v. Diah,

No. 22-13281, 2023 WL 7220003

(11th Cir. Nov. 2, 2023) ....................................... 3

Fields v. Federal Bureau of Prisons, et. al.,

109 F.4th 264 (4th Cir. 2024) ........................ 6, 10

Greene v. United States,

No. 21-5398, 2022 WL 13638916

(6th Cir. Sept. 13, 2022)....................................... 3

Hernandez v. Mesa,

589 U.S. 93 (2020) ............................................ 7, 9

Johnson v. Terry,

119 F.4th 840 (11th Cir. 2024) .............. 1, 3, 4, 10

Kornegay v. Linter,

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

(N.D.W. Va. Nov. 20, 2024), report and

recommendation adopted sub nom.

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

WL 5116847 (N.D.W. Va. Dec. 16, 2024) ........... 6

Landis v. Moyer,

No. 22-2421, 2024 WL 937070

(3d Cir. Mar. 5, 2024) ........................................... 2

Mays v. Smith,

70 F.4th 198 (2023) .............................................. 9

Patton v. Blackburn,

No. 21-5995, 2023 WL 7183139

(6th Cir. May 2, 2023) ...................................... 2-3

Silva v. United States,

45 F.4th 1134 (10th Cir. 2022) ............................ 2

Turner v. Safley,

482 U.S. 78 (1987) ................................................ 8

Watkins v. Carter,

No. 22-40477, 2023 WL 4312771

(5th Cir. July 3, 2023) ...................................... 2, 3

Williams v. Myers,

No. CV JKB-23-3017, 2025 WL 906270

(D. Md. Mar. 24, 2025) ......................................... 6

Constitutional Provisions:

U.S. Const. amend. IV .............................................. 11

U.S. Const. amend. VIII ................. 1, 2, 5, 6, 8, 10, 11

Statute and Regulation:

28 C.F.R. § 542.14(d)(1).............................................. 7

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

138 Stat. 1492 (July 25, 2024) ............................. 8

The Fourth Circuit opened a new frontier by

extending Bivens to Eighth Amendment excessive

force claims. Its opinion sparked a forceful and wellreasoned dissent. Pet.App. 23a-37a. It immediately

drew withering criticism from a sister circuit. Johnson

v. Terry, 119 F.4th 840, 850-51 (11th Cir. 2024). And

it prompted unsolicited amicus briefs from the United

States at both the rehearing and certiorari stages.

That’s because the decision below defies the Court’s

warnings about expanding Bivens, conflicts with the

rulings of the eight other circuits to consider the same

issue since Egbert v. Boule, 596 U.S. 482 (2022), and

will interfere with correctional officers’ daily decisions

on the job.

Even so, Fields insists that there is nothing to see

here. He dismisses the decision below as “narrow”

(seven times), “unusual” (five times), and “rare”

(eleven times), characterizing Petitioners as “rogue”

agents (five times) engaged in “egregious” misconduct

(eleven times). But Fields never disputes the

substance of what the Fourth Circuit has held: Any

plaintiff can bring a Bivens claim, despite Congress’s

failure to create one, if he alleges that a prison official

used excessive force on him and that his failure to

seek an administrative remedy is a defendant’s fault.

Such allegations are neither narrow nor rare, and in

no other circuit would they suffice to create a cause of

action. See, e.g., Johnson, 119 F.4th at 861 & n.7

(rejecting the argument that a plaintiff who says he

was “not allowed to access the grievance procedure”

has overcome the “special factors” counseling

hesitation before creating a new Bivens right of

action).

Confirming the significance of the Fourth Circuit’s

decision, at least one district court has already relied

on it to further extend Bivens. D. Ct. Doc. 61,

Calderon-Velasquez v. Mears, No. 22-CV-692 (E.D.

Va. Apr. 11, 2025). Another relied on it to uphold an

Eighth Amendment excessive force claim against

prescreening review. Acuna v. Jastal, No. 5:24-CT03097, 2025 WL 1296215, at *3 (E.D.N.C. May 2,

2025). And every Bivens case involves allegations of

misconduct, often by purportedly “rogue” officials. The

question isn’t whether the court endorses the conduct

alleged in the complaint. The question is whether in

response to those allegations, the court should grab

the wheel from Congress and exercise the legislative

power to invent a new cause of action.

The Fourth Circuit is “a far-afield outlier.”

Since the Egbert trilogy, the eight circuits faced

with the question whether to extend Bivens to this

new context have declined to do so. The Second, Ninth,

and Tenth Circuits issued published opinions,1 while

the Third, Fifth, Sixth, Seventh, and Eleventh

Circuits found the question straightforward enough

that an unpublished opinion would suffice.2 Only the

1 See Edwards v. Gizzi, 107 F.4th 81, 82 (2d Cir. 2024) (per

curiam); Chambers v. Herrera, 78 F.4th 1100, 1107-08 (9th Cir.

2023); Silva v. United States, 45 F.4th 1134, 1141 (10th Cir.

2022)

2 See Landis v. Moyer, No. 22-2421, 2024 WL 937070, at *2*3 (3d Cir. Mar. 5, 2024); Alsop v. Fed’l 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); Patton v. Blackburn, No. 21-5995, 2023

Fourth Circuit assumed the legislative authority to

create an admittedly new cause of action. Given this

divergence, the Eleventh Circuit was right to describe

the decision below as “a far-afield outlier.” Johnson,

119 F.4th at 85.

Yet Fields doesn’t see any circuit split at all. To

start, Fields brushes past the slew of unpublished

opinions contrary to his position as if the question

remained open in those circuits. He misses the point

that in those circuits, the question is so firmly closed,

in light of precedent from this Court and those

circuits, that it now requires only an unpublished

opinion.

As to the published opinions, he tries to paint them

as factually distinguishable. But the circuit conflict

here isn’t based on mirror-image fact patterns. This

case presents a split because the Fourth Circuit

dismissed factors that proved outcome-dispositive in

other circuits, such as Congress’s decision not to

create a private remedy for damages in the PLRA and

the availability of other remedies like the FTCA or the

Administrative Remedy Program.3

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). In fairness to Fields,

the Petition did not cite Watkins, see Pet. 27-28, but the

Government flagged the opinion in its amicus brief, U.S. Cert.

Amicus Br. 15.

3 See Edwards, 107 F.4th at 84-86 (Park, J., concurring);

Chambers, 78 F.4th at 1107-08.

Fields counters that he alleged that Petitioners

denied him access to the Administrative Remedy

Program, so it wasn’t really available here. That

argument fails on the merits for the reasons explained

below. But it also fails as an effort to ward off a circuit

split, because the Eleventh Circuit rejected the same

argument in Johnson. 119 F.4th at 859-61 & n.7. The

court explained that “whether the plaintiff himself

was denied access to an administrative remedy is not

the question. The question is ‘whether the

Government has put in place safeguards to prevent

constitutional violations from recurring.’” Id. at 860

(quoting Egbert, 596 U.S. at 498). So not only did the

Fourth Circuit ignore factors that would have ended

the analysis in other circuits, it adopted a rationale

that another court promptly rejected. That’s a classic

split.

Beyond that, if the dispositive factor in an opinion

was the availability of an alternative remedy in the

FTCA4 or Congress’s failure to create a private

Fields complains that under Carlson, the FTCA cannot

qualify as an alternative remedy. BIO 22-23. But as Judge Park

explained, when Carlson was decided, the Court looked to

whether “‘Congress has provided an alternative remedy which it

explicitly declared to be a substitute for recovery directly under

the Constitution and viewed as equally effective’ in assessing

whether an alternative remedial scheme forecloses a Bivens

claim.” Edwards, 107 F.4th at 85 n.3 (Park, J., concurring)

(quoting Carlson v. Green, 446 U.S. 14, 18-19 (1980) (emphasis

altered)). Modern case law reverses the presumptions, so today

the Court will defer to congressional inaction so long as “the

design of a Government program suggests that Congress has

provided what it considers adequate remedial mechanisms.”

Ibid. (quoting Egbert, 596 U.S. at 501). Thus, this Court’s modern

approach gives “little weight” to Carlson’s conclusion “because it

damages remedy in the PLRA, then why would it

matter if the plaintiff alleges that he was denied

access to the Program? If the Program’s availability

didn’t drive the court’s analysis, then its purported

unavailability should not change the result.

Fields also accuses Petitioners of mischaracterizing

the decision below by saying that it approved a Bivens

action for all excessive force claims. BIO 1, 7-9. This is

a straw man. Petitioners explicitly recognized that the

Fourth Circuit created a Bivens remedy “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 … .” Pet. 9

(quoting Pet.App. 12a). The question presented is

whether such a claim must fail because the courts

have no authority to create a cause of action for

excessive force under the Eighth Amendment without

action by Congress. Obviously, the Fourth Circuit

ruled on the claims before it based on the record, as

opposed to issuing a sweeping prospective rule. That’s

the difference between a judicial opinion and a

statute. But just as obviously, the Fourth Circuit

extended Bivens to a new context, recognizing an

implied cause of action for Eighth Amendment

excessive force claims. See Pet.App. 1a-22a. That is

not a “mischaracterization.” Other courts have

predates [the Court’s] current approach to implied causes of

action and diverges from the prevailing framework.” Ibid.

(quoting Egbert, 596 U.S. at 500-01) (alterations in original).

described the opinion in the same terms, including

multiple courts in the Fourth Circuit.5

II.

The decision below is wrong.

Fields strains to recast the opinion below as a

faithful application of governing precedent. BIO 9-21.

By his lights, there is not a single reason—not even

one—to suspect that the Legislature might be better

suited than the Judiciary to decide if Bivens should be

extended to Eighth Amendment excessive force

claims.

In fact, reasons abound.

1. Start with alternative remedies: The

Legislative and Executive Branches have already

established the Administrative Remedy Program.

5 See, e.g., Williams v. Myers, No. CV JKB-23-3017, 2025 WL

906270, at *3 (D. Md. Mar. 24, 2025) (“Nevertheless, the Fourth

Circuit recently extended Bivens to a new context, allowing a

federal prisoner’s claims of excessive force in violation of the

Eighth Amendment to proceed against individual prison

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

5298779, at *5 (N.D.W. Va. Nov. 20, 2024), report and

recommendation adopted sub nom. Kornegay v. Lintner, No. 5:24CV-137, 2024 WL 5116847 (N.D.W. Va. Dec. 16, 2024) (“[T]he

undersigned is mindful of the Fourth Circuit’s recent decision in

Fields v. Federal Bureau of Prisons, et. al.,109 F.4th 264 (4th Cir.

2024), where a divided panel of the [c]ourt extended Bivens to a

new context, permitting a federal prisoner’s Eighth Amendment

excessive force claim to proceed against BOP officials.”); Dixon v.

Royal Live Oaks Acad. of the Arts & Scis. Charter Sch., No. 9:22CV-04198, 2024 WL 4284667, at *11 n.1 (D.S.C. Sept. 25, 2024)

(“The Fourth Circuit recently extended Bivens to a federal

prisoner’s claims of excessive force in violation of the Eighth

Amendment against individual prison officers.”).

Fields contends that the Program is irrelevant,

because he alleges that Petitioners denied him access

to it. BIO 10-13.

This is less an argument than a category error.

Bivens calls for a separation-of-powers analysis. The

question is not whether we like how the Executive or

Legislature’s preferred remedy functions in a given

case. The question is whether the Legislature or

Executive has acted at all, to help us determine which

branch is best positioned to craft a remedy. Here, both

political branches acted. Fields says that Petitioners

managed to end-run that remedy, denying him relief.

But the political branches addressed that possibility,

too: The Program lets inmates who believe that their

safety would be endangered if their grievance became

known at their institution bypass the warden,

submitting a “sensitive” request directly to the

Regional Director. 28 C.F.R. § 542.14(d)(1). Simply

put, the Executive and Legislature established an

alternate remedy for claims like this. That Fields

finds it inadequate to his needs does not change the

separation-of-powers analysis.

2. Next, Fields argues that Congress’s decision

not to include a private damages remedy in the PLRA

should not counsel against judicially creating a

remedy here because when Congress passed the

PLRA, Bivens actions were common. BIO 13-14. But

as this Court has explained, Congress’s decision not to

overrule Carlson “certainly does not suggest” a desire

for “robust enforcement of Bivens remedies,” much

less give “license to create a new Bivens remedy.”

Hernandez, 589 U.S. at 111 n.9 (2020). And as the

dissent noted below, “[t]hat Congress looked intently

and specifically at prisoner litigation and offered no

private damages remedy should give us a reason to

think that Congress might not want us to usurp its

authority and create one ourselves.” Pet.App. 28a.

Beyond that, Congress recently passed the Federal

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

1492 (July 25, 2024), revisiting the area of prisoner

litigation and again declining to create a private

damages remedy. Fields counters that the Act was not

signed into law until the day the Fourth Circuit

handed down its opinion, so it is irrelevant because he

could not have taken advantage of it. BIO 16-17. This

argument misses the mark. It doesn’t matter whether

Fields personally could proceed under the Act; of

course he couldn’t, because Congress decided not to

create a private damages remedy. That’s the point:

The Legislature once again looked at this area of the

law and decided not to authorize the claim that Fields

wants to bring. That decision should have informed

the analysis below. After all, the dissent brought it to

the majority’s attention. Pet.App. 26a n.3.

3. Fields argues that because the Fourth Circuit

targeted allegedly “rogue” officers who violated prison

policy, its decision will not have systemic effects. BIO

18-20. A little humility is in order here. “Running a

prison is an inordinately difficult undertaking that

requires expertise, planning, and … resources.”

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

courts and appellate lawyers do not necessarily have

the institutional competence to tackle those problems.

At a minimum, they cannot reliably “predict the

‘systemwide’ consequences” of making prison staff

personally liable under the Eighth Amendment. See

Egbert, 596 U.S. at 493. That uncertainty alone is a

special factor foreclosing judicially created relief. Ibid.

What’s more, courts do not find systemic

consequences only when a prisoner challenges prison

policy or action in accordance with that policy.

Hernandez, for example, involved a classic “rogue”

officer; Justice Ginsburg described him as such four

times. 589 U.S. at 118-27 (Ginsburg, J., dissenting).

And as Judge Richardson observed below, not even

the Fourth Circuit follows Fields’s proposed rule.

Pet.App. 34a. It’s unlikely, for example, that the

correctional officers who allegedly placed Joseph

Mays in administrative detention, fired him from a

prison job, and transferred him to a different prison

because of his race acted under policy. Even so, the

Fourth Circuit concluded that expanding Bivens

“would almost certainly ‘impose liability on prison

officials on a systemic level’ and amount to a

substantial burden on government officials.” Mays v.

Smith, 70 F.4th 198, 206 (2023).

4. As for Bivens’s continuing vitality, Fields does

not even try to square the genus of rights of action,

inferred directly from the Constitution by judges, with

modern doctrine.

III.

This case is important.

Finally, Fields complains that the decision below is

unimportant. BIO 26-27. Yet it prompted a thorough

dissent—which Fields ignores altogether—and two

unsolicited amicus briefs from the Government. It

also drew immediate criticism from the Eleventh

Circuit, which wrote:

Meanwhile, rarity doesn't foreclose false

sightings. In the recent Fields case, a divided

Fourth Circuit panel extended Bivens to a new

context, allowing a federal prisoner’s claims of

excessive force in violation of the Eighth

Amendment to proceed against individual

prison officers. A vigorous and cogent dissent

rejected the “wiggle room” the Fields majority

“purport[ed] to detect” in the Supreme Court’s

repeated warnings that courts should not

extend Bivens.

The decision in Fields, a far-afield outlier,

may lead to en banc reconsideration or to the

Supreme Court finally rendering Bivens cases

extinct. After all, the Supreme Court has stated

as clearly as the English language permits: “[I]f

we were called on to decide Bivens today, we

would decline to discover any implied causes of

action in the Constitution.” That “called on to

decide Bivens” call may be coming if the panel

decision in Fields manages to duck en banc

correction.

Johnson, 119 F.4th at 850-51 (citations omitted).

If this case were unimportant, then the Court

would not have heard from four Circuit Judges and

the Solicitor General. In truth, this is a watershed

case. The question of whether to recognize a Bivens

remedy for an Eighth Amendment excessive force

claim recurs frequently. Since Egbert was handed

down in 2022, nine circuits have weighed in on the

issue. As the Government points out, prisoner

lawsuits are unduly burdensome. U.S. Cert. Amicus

Br. 10. Opening the spigot will affect the way

correctional officers do their jobs on a daily basis.

Fields responds that so long as they avoid

“egregious” misconduct, correctional officers don’t

need to fear litigation. But all that’s required to file a

lawsuit is an allegation of excessive force. In a prison

system where officers have to place their hands on

prisoners on a daily basis, U.S. Cert. Amicus Br. 9,

disputes over the force used are common. And as the

dissent noted below, it will take very little for a

prisoner to allege that he has been denied access to an

administrative remedy simply by making vague

allegations or omitting necessary context—“[f]or

example, ‘my unit supervisors prevented me from

accessing the administrative remedy program’—

temporarily, because I was in solitary confinement for

harming another inmate or a corrections officer.’”

Pet.App. 36a n.11.

Fields argues that this case does not warrant

review because the decision below “has not been used

to adjudicate any other claim since it was issued.” BIO

26; see also id. at 1 (“[N]o court has applied the Fourth

Circuit’s decision to authorize a cause of action in any

circumstance beyond the rare facts presented here.”).

He is wrong. A district court has already relied on

the decision below to further extend Bivens to a

Fourth Amendment bodily privacy claim. D. Ct. Doc.

61, Calderon-Velasquez v. Mears, No. 22-CV-692, at 68 (E.D. Va. Apr. 11, 2025) (finding prisoner’s

allegations that his grievances were “ignored”

sufficient to find no alternate remedy). Another

district court applied the decision to hold that an

Eighth Amendment excessive force claim survived

prescreening review under the PLRA. Acuna v. Jastal,

No. 5:24-CT-03097, 2025 WL 1296215, at *3 (E.D.N.C.

May 2, 2025). That could not happen in any other

circuit. And before this case, it could not have

happened in the Fourth Circuit, either. See

Pet.App.38a-55a (District Court opinion dismissing

complaint on prescreening review).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

WILLIAM M. JAY

GOODWIN PROCTER LLP