Petition for Writ of Certiorari — Noah A. Herzon, et al., Petitioners v. Robert Arias

Supreme Court briefJul 23, 2026

Ask Donna

What actually matters in this document.

Text

No. XX-XX

In the Supreme Court of the United States

NOAH A. HERZON, ET AL., PETITIONERS

ROBERT ARIAS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

D. JOHN SAUER

Solicitor General

Counsel of Record

BRETT A. SHUMATE

Assistant Attorney General

CURTIS E. GANNON

Deputy Solicitor General

VIVEK SURI

Assistant to the

Solicitor General

MELISSA N. PATTERSON

JAYNIE LILLEY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), in

which this Court created a private right of action to seek

damages for a Fourth Amendment claim arising out of

a warrantless arrest in a home, should be extended to a

Fourth Amendment excessive-force claim arising out of

the execution of an arrest warrant outside the home.

(I)

PARTIES TO THE PROCEEDING

Petitioners (defendants-appellees below) are Noah

A. Herzon, Juan Infante, Ty Kurcharski, Christopher

Day, Adalberto Garcia, and Michael Bernard. Respondent (plaintiff-appellant below) is Robert Arias. The

United States of America and the Drug Enforcement

Administration were defendants but were dismissed as

parties in the district court.

RELATED PROCEEDINGS

United States District Court (D.N.H.):

Arias v. Herzon, No. 17-cv-516 (June 27, 2023)

United States Court of Appeals (1st Cir.):

Arias v. Herzon, No. 23-1618 (Aug. 15, 2025)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

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

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

Reasons for granting the petition ............................................... 5

A. The court of appeals erred by extending Bivens to

warrant-authorized arrests outside the home ................ 6

B. The question presented warrants this Court’s

review ............................................................................... 12

C. Alternatively, this Court should hold the petition

pending the resolution of Nielsen ................................. 15

Conclusion ................................................................................... 16

Appendix A — Court of appeals opinion (Aug. 15, 2025)...... 1a

Appendix B — District court order (June 27, 2023) ........... 58a

Appendix C — Court of appeals order denying rehearing

(Feb. 24, 2026) ......................................... 74a

TABLE OF AUTHORITIES

Cases:

Alexander v. Sandoval, 532 U.S. 275 (2001) ......................... 6

Annappareddy v. Pascale,

996 F.3d 120 (4th Cir. 2021) ............................................... 13

Barnes v. Felix, 605 U.S. 73 (2025) ...................................... 10

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ........ 1, 3, 5, 6, 11

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

Byrd v. Lamb, 990 F.3d 879 (5th Cir. 2021),

cert. denied, 142 S. Ct. 2850 (2022) ................................... 13

Carlson v. Green, 446 U.S. 14 (1980) ..................................... 6

Case v. Montana, 607 U.S. 107 (2026) ................................... 9

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

(III)

Cases—Continued:

Page

Cisco Systems, Inc. v. Doe, 146 S. Ct. 1882 (2026) ........... 2, 6

Correctional Services Corp. v. Malesko,

534 U.S. 61 (2001) ................................................................. 7

Davis v. Passman, 442 U.S. 228 (1979) ................................. 6

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

Egbert v. Boule, 596 U.S. 482 (2022) ............................. 6-8, 11

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

Florida v. Jardines, 569 U.S. 1 (2013) .................................. 8

Georgia v. Randolph, 547 U.S. 103 (2006) ............................ 8

Goldey v. Fields, 606 U.S. 942 (2025) ................................ 2, 7

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

Johnson v. United States, 333 U.S. 10 (1948) ....................... 9

Lange v. California, 594 U.S. 295 (2021) .............................. 9

Logsdon v. U.S. Marshal Service,

91 F.4th 1352 (10th Cir. 2024) ...................................... 12-14

Mejia v. Miller, 61 F.4th 663 (9th Cir. 2022) ...................... 13

Nielsen v. Watanabe, cert. granted,

No. 25-417 (June 22, 2026) ............................................. 5, 16

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

Orellana v. Godec, 145 F.4th 516 (4th Cir. 2025) ............... 13

Payton v. New York, 445 U.S. 573 (1980) ............................. 9

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

Snowden v. Henning, 72 F.4th 237 (7th Cir. 2023),

cert. denied, 145 S. Ct. 137 (2024) ..................................... 12

Town of Castle Rock v. Gonzales,

545 U.S. 748 (2005).............................................................. 10

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

United States v. Watson, 423 U.S. 411 (1976) ...................... 9

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

Wong Sun v. United States, 371 U.S. 471 (1963) ................. 9

Ziglar v. Abbasi, 582 U.S. 120 (2017) ......................... 7-10, 12

Constitution, statutes, and rule:

Page

U.S. Const.:

Amend. IV ...................................................2, 3, 6, 8, 11, 15

Amend. V ............................................................................ 6

Amend. VIII............................................................. 2, 6, 15

Inspector General Act Amendments of 1988,

Pub. L. No. 100-504, 102 Stat. 2515 .................................... 4

Inspector General Act of 1978,

Pub. L. No. 95-452, 92 Stat. 1101 .................................... 4, 5

42 U.S.C. 1983 .......................................................................... 6

Fed. R. Crim. P.:

Rule 4(a) ........................................................................... 10

Rule 4(b)(1)(C) ................................................................. 10

In the Supreme Court of the United States

No. XX-XX

NOAH A. HERZON, ET AL., PETITIONERS

ROBERT ARIAS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a57a) is reported at 150 F.4th 27. The order of the district court (App., infra, 58a-73a) is reported at 680

F. Supp. 3d 61.

JURISDICTION

The judgment of the court of appeals was entered on

August 15, 2025. A petition for rehearing was denied on

February 24, 2026 (App., infra, 74a-75a). On May 8,

2026, Justice Jackson extended the time within which to

file a petition for a writ of certiorari to and including

July 24, 2026. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

INTRODUCTION

In Bivens v. Six Unknown Named Agents of Federal

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

(1)

created a private right of action to seek damages for a

Fourth Amendment claim that federal officers used excessive force to conduct a warrantless arrest in the

home. In the decision below, the First Circuit extended

the Bivens remedy to respondent’s Fourth Amendment

claim that officers used excessive force to conduct an

arrest with a warrant outside the home.

That decision is incorrect. Since Bivens, this Court

has come to recognize that “the power to create causes

of action belongs to Congress,” not the courts. Cisco

Systems, Inc. v. Doe, 146 S. Ct. 1882, 1890 (2026). “For

the past 45 years,” therefore, it “has consistently declined

to extend Bivens to new contexts.” Goldey v. Fields,

606 U.S. 942, 945 (2025) (per curiam). The court of appeals concluded that this case does not arise in a new

context for Bivens, but that disregards meaningful differences between warrantless arrests in the home and

warrant-authorized arrests outside the home.

The First Circuit’s decision deepens a multi-sided

circuit conflict. Three courts of appeals (the First, Seventh, and Tenth Circuits) have determined that Bivens

covers excessive-force claims arising out of warrantauthorized arrests outside the home. Two courts of appeals (the Fifth and Ninth Circuits) have determined

that Bivens does not encompass excessive-force claims

arising outside the home, whether with or without warrants. And one court of appeals (the Fourth Circuit) has

determined that Bivens does not encompass excessiveforce claims arising out of arrests with warrants, whether in or outside the home.

This Court should resolve that disagreement. At a

minimum, the Court should hold the petition for a writ

of certiorari pending the resolution of Nielsen v. Watanabe, cert. granted, No. 25-417 (June 22, 2026). Although

Nielsen involves an Eighth Amendment claim rather

than a Fourth Amendment claim, it could affect the

court of appeals’ mode of analyzing whether this case

arises in a new context for Bivens.

STATEMENT

1. In 2016, the Drug Enforcement Administration

(DEA) began investigating respondent Robert Arias for

drug trafficking. 2021 WL 185031, at *1. After DEA

agents made several controlled purchases of fentanyllaced heroin from respondent, the DEA obtained a warrant for his arrest. Ibid.

A task force consisting of DEA agents and local police officers executed the warrant in the parking lot of a

shopping mall in Salem, New Hampshire. App., infra,

59a-60a. Finding respondent in the front passenger

seat of a car, task-force members cut his seatbelt, removed him from the car, and handcuffed him. Id. at 60a.

According to the officers, the arrest was “quick and non

violent.” Ibid. But respondent alleges that the officers

dragged him from the car by his neck, hit his head

against the ground, stepped on his legs, and caused him

to lose consciousness. Ibid.

2. Respondent sued petitioners—six task-force members who were allegedly involved in his arrest—in the

United States District Court for the District of New

Hampshire. 2021 WL 185031, at *1. Invoking Bivens v.

Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), he seeks damages from

petitioners on the ground that they violated the Fourth

Amendment by using excessive force to arrest him or

by failing to intervene to prevent the use of excessive

force. App., infra, 58a. The district court granted summary judgment in favor of two of the six petitioners because respondent could not show that they participated

in or witnessed his arrest. 2021 WL 185031, at *4-*5.

The district court later granted summary judgment

in favor of the remaining petitioners on the ground that

respondent lacks a right of action under Bivens. App.,

infra, 58a-73a. The court determined that respondent’s

excessive-force and failure-to-intervene claims arose in

new contexts to which Bivens should not be extended.

Id. at 66a-73a. The court concluded that this case differs from Bivens because the Inspector General Act of

1978 (Inspector General Act), Pub. L. No. 95-452, 92

Stat. 1101—which was extended to the DEA by the Inspector General Act Amendments of 1988, Pub. L. No.

100-504, 102 Stat. 2515—provided new administrative

remedies for alleged misconduct by DEA agents. App.,

infra, 68a-71a. But the court rejected petitioners’ contention that this case meaningfully differs from Bivens

because Bivens involved a warrantless arrest in the

home while this case involves the execution of an arrest

warrant outside the home. Id. at 67a-68a.

3. A divided panel of the First Circuit affirmed in

part, reversed in part, and remanded. App., infra, 1a57a. The court concluded that respondent’s excessiveforce claim arises in the same context as Bivens, id. at

7a-43a, but noted that respondent did not contest the

district court’s holding that his failure-to-intervene

claim arises in a different context, id. at 43a.

The court of appeals rejected petitioners’ contention

that the excessive-force claim arises in a new context for

Bivens because it involves the execution of an arrest

warrant outside the home. App., infra, 17a-23a. It reasoned that “[t]he use of excessive force in effectuating

an arrest is equally excessive regardless of whether an

arrest is made pursuant to a warrant,” id. at 18a, and

that “the fact that the allegedly excessive force took

place in a parking lot rather than at a private home does

not risk ‘altering the policy balance that initially justi-

fied the cause of action recognized in Bivens,’ ” id. at

20a-21a (brackets and citation omitted). The court of

appeals then rejected the district court’s determination

that the Inspector General Act distinguishes this case

from Bivens. Id. at 23a-43a. The court stated that such

a rationale would eliminate Bivens remedies “for all

claims against federal law enforcement officers.” Id. at

26a n.5.

Judge Lynch concurred in part and dissented in part.

App., infra, 44a-57a. Judge Lynch agreed with the

court’s rejection of respondent’s failure-to-intervene

claim, but she would have rejected his excessive-force

claim as well. Id. at 44a. In her view, this case differs

from Bivens because it involves the execution of an arrest warrant outside the home, id. at 53a-55a, and because the Inspector General Act has provided a system

of administrative remedies, id. at 50a-53a.

4. Petitioners filed a petition for rehearing, which

the court of appeals denied. App., infra, 74a-75a. Judge

Lynch dissented from the denial of panel rehearing. Id.

at 75a.

REASONS FOR GRANTING THE PETITION

The court of appeals erred by extending the private

damages remedy in Bivens v. Six Unknown Named

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

(1971), a case that involved a warrantless arrest in the

home, to cases that involve warrant-authorized arrests

outside the home. Because that decision deepens a

multi-sided circuit conflict, this Court should grant plenary review. At a minimum, the Court should hold the

petition for a writ of certiorari pending the resolution of

Nielsen v. Watanabe, cert. granted, No. 25-417 (June

22, 2026).

A. The Court Of Appeals Erred By Extending Bivens To

Warrant-Authorized Arrests Outside The Home

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.

Such rights of action are ordinarily created through

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

In Bivens, this Court created a private right of action

for damages against federal narcotics agents who allegedly violated the Fourth Amendment by arresting the

plaintiff in his house without a warrant. See 403 U.S. at

397. The agents in that case allegedly “manacled [the

plaintiff ] in front of his wife and children,” “threatened

to arrest the entire family,” “searched the apartment

from stem to stern,” and later “subjected [the plaintiff ]

to a visual strip search.” Id. at 389. In two subsequent

cases, this Court extended the Bivens remedy by creating rights of action for a former congressional staffer’s

Fifth Amendment equal-protection claim alleging discrimination based on sex, see Davis v. Passman, 442

U.S. 228, 230-231 (1979), and for a prisoner’s Eighth

Amendment claim alleging deliberate indifference by

prison staff to a medical emergency, see Carlson v.

Green, 446 U.S. 14, 18-23 (1980).

Since then, this Court has come to recognize that “judicially created causes of action offend the separation of

powers in almost every circumstance.” Cisco Systems,

Inc. v. Doe, 146 S. Ct. 1882, 1891 (2026); 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 46 years since Carlson, the Court has

consistently rejected every proposed Bivens action that

it has considered. See Goldey v. Fields, 606 U.S. 942,

944-945 (2025) (per curiam); Egbert, 596 U.S. at 493-494,

498-499; Hernández v. Mesa, 589 U.S. 93, 113-114

(2020); Ziglar v. Abbasi, 582 U.S. 120, 145-146 (2017);

Minneci v. Pollard, 565 U.S. 118, 131 (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).

2. This Court has applied a two-step test to decide

whether to allow a Bivens claim to proceed. See Egbert,

596 U.S. at 492. The Court first asks whether the case

presents “a new Bivens context”—i.e., whether the case

“meaningfully differ[s] from the three cases” in which

the Court has recognized a Bivens remedy. Ibid. (brackets and citation omitted). “A case might differ in a

meaningful way” on account of any of various kinds of

alterations in its circumstances, such as “the rank of the

officers involved; the constitutional right at issue; the

generality or specificity of the official action; the extent

of judicial guidance as to how an officer should respond

to the problem or emergency to be confronted; the statutory or legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary

into the functioning of other branches”—or from the

presence of other “special factors that previous Bivens

cases did not consider.” Abbasi, 582 U.S. at 139-140. In

other words, “the new-context inquiry is easily satisfied.” Id. at 149. A case presents a new context even if

it differs from earlier Bivens cases in “small” ways, because “even a modest extension is still an extension.”

Id. at 147, 149.

If a case arises in a new Bivens context, 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. Egbert, 596 U.S. at 492 (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).

3. Neither respondent nor the court of appeals denied that, if this case arises in a new context for Bivens,

special factors would counsel hesitation in extending

Bivens to that context. Respondent instead contended,

and the decision below held, only that this case arises in

the same context as Bivens. That holding is wrong.

This case, which involves a warrant-authorized arrest

outside the home, meaningfully differs from Bivens,

which involved a warrantless arrest in the home.

To start, “the constitutional right[s] at issue” differ.

Abbasi, 582 U.S. at 140. While all arrests implicate the

“right of the people to be secure in their persons,” an

arrest in the home also implicates the “right of the people to be secure in their * * * houses.” U.S. Const.

Amend. IV. Under the Fourth Amendment, the home

“is first among equals,” Florida v. Jardines, 569 U.S. 1,

6 (2013), and “is entitled to special protection as the center of the private lives of our people,” Georgia v. Randolph, 547 U.S. 103, 115 (2006) (citation omitted). “ ‘Freedom’ in one’s own ‘dwelling is the archetype of the privacy protection secured by the Fourth Amendment,’ ”

and “ ‘physical entry of the home is the chief evil against

which it is directed.’ ” Lange v. California, 594 U.S. 295,

303 (2021) (brackets and citation omitted). An arrest in

that “most private place” thus meaningfully differs

from an arrest that is made elsewhere. Case v. Montana, 607 U.S. 107, 113 (2026). Indeed, that is precisely

why an arrest in the home usually requires a warrant,

see Payton v. New York, 445 U.S. 573, 586-590 (1980),

even though an arrest generally requires only probable

cause, see United States v. Watson, 423 U.S. 411, 414424 (1976).

That warrant requirement, in turn, protects the

right to have probable cause determined by a “neutral

and detached magistrate” rather than by “the officer

engaged in the often competitive enterprise of ferreting

out crime.” Johnson v. United States, 333 U.S. 10, 14

(1948). “The arrest warrant procedure serves to insure

that the deliberate, impartial judgment of a judicial officer will be interposed between the citizen and the police, to assess the weight and credibility of the information which the complaining officer adduces as probable cause.” Wong Sun v. United States, 371 U.S. 471,

481-482 (1963). An arrest with a warrant respects those

guarantees, while an improper arrest without a warrant

subverts them.

This case also differs from Bivens with respect to the

“extent of judicial guidance as to how an officer should

respond to the problem or emergency to be confronted.”

Abbasi, 582 U.S. at 140. This Court’s cases have “drawn

a firm line at the entrance to the house.” Payton, 445

U.S. at 590. They provide clear guidance for law enforcement: In the absence of an exigency, officers must

“get a warrant before entering a home without permission.” Lange, 594 U.S. at 298. Judicial guidance for officers executing a warrant outside the home, by con-

trast, is less precise. They must refrain from using excessive force in carrying out an arrest, but “[t]here is no

‘easy-to-apply legal test’ ” for determining when force is

excessive. Barnes v. Felix, 605 U.S. 73, 80 (2025) (citation omitted). That “judicial precedents provide a less

meaningful guide for official conduct” here is one reason

this case “present[s] a new context for Bivens purposes.” Abbasi, 582 U.S. at 148.

Next, this case differs from Bivens because an officer who executes an arrest warrant operates under a

different “legal mandate” than an officer who makes a

warrantless arrest. Abbasi, 582 U.S. at 140. In general,

the decision whether to make a warrantless arrest on

the basis of an officer’s finding of probable cause lies

within the discretion of the arresting officer. See Town

of Castle Rock v. Gonzales, 545 U.S. 748, 760-761 & n.8

(2005). By contrast, an arrest warrant reflects a judicial

magistrate’s finding of probable cause and concomitant

“command” that the suspect be arrested. Fed. R. Crim.

P. 4(a) and (b)(1)(C). A lawmaker could reasonably conclude that damages liability is more appropriate when

police officers are exercising their own discretion to

make arrests than when they are carrying out judicial

commands.

Further distinguishing this case from Bivens, this

case poses a heightened “risk of disruptive intrusion by

the Judiciary into the functioning of other branches.”

Abbasi, 582 U.S. at 140. Recognizing a Bivens action in

the circumstances of this case would expose officers to

personal liability not just for crossing the bright line associated with warrantless intrusions into the home, but

for engaging in more general law-enforcement activities. Such a broad application of Bivens would heighten

the “risk that fear of personal monetary liability and

harassing litigation will unduly inhibit officials in the

discharge of their duties.” Egbert, 596 U.S. at 499 (citation omitted).

Finally, the alleged conduct in Bivens involved a

more significant violation of the Fourth Amendment

than respondent’s allegations. The conduct in Bivens—

the use of excessive force in making a warrantless arrest in the home—was among “the most flagrant abuses

of official power” and “the most flagrant and patently

unjustified sorts of police conduct.” 403 U.S. at 410-411

(Harlan, J., concurring in the judgment). A reasonable

lawmaker could conclude that such conduct is more deserving of a damages remedy than the use of excessive

force to execute an arrest warrant in a public place.

The court of appeals reasoned that this case, like

Bivens, involves “excessive force claims” against “line

law enforcement officers,” App., infra, 15a, and that

“[t]he use of excessive force in effectuating an arrest is

equally excessive regardless of whether an arrest is

made pursuant to a warrant,” id. at 18a, or whether the

arrest is made in the home, id. at 20a-21a. This Court,

however, rejected a similar line of reasoning in Egbert,

where it declined to recognize a Bivens action against a

border-patrol agent who allegedly used excessive force

in making an arrest near the border between the United

States and Canada. See 596 U.S. at 494-496. Though

Bivens and Egbert “involve[d] similar allegations of excessive force and thus arguably present[ed] ‘almost parallel circumstances,’ ” the Court determined that “these

superficial similarities [we]re not enough to support the

judicial creation of a cause of action.” Id. at 495 (citation

omitted). That Egbert involved a “ ‘conventional’ excessive-force claim, as in Bivens, d[id] not bear on the relevant point.” Ibid. So too here, the differences between

this case and Bivens are more important than the similarities.

The court of appeals also found the differences between this case and Bivens insufficiently “meaningful”

to create a new context. App., infra, 21a. This Court

has explained, however, that “the new-context inquiry

is easily satisfied,” that even “small” differences can

make a context new, and that “even a modest extension

is still an extension.” Abbasi, 582 U.S. at 147, 149. Because the differences between warrant-authorized arrests outside the home and warrantless arrests in the

home are not “trivial,” this case arises in a new context.

Id. at 149.

B. The Question Presented Warrants This Court’s Review

The court of appeals’ decision warrants this Court’s

review because it deepens a multi-sided circuit conflict

about whether Bivens extends to claims that officers

used excessive force outside the home or in executing

an arrest warrant.

Three courts of appeals—the First Circuit in this

case, the Seventh Circuit in Snowden v. Henning, 72

F.4th 237 (2023), cert. denied, 145 S. Ct. 137 (2024), and

the Tenth Circuit in Logsdon v. U.S. Marshal Service,

91 F.4th 1352 (2024)—have concluded that Bivens encompasses excessive-force claims arising out of the execution of arrest warrants outside the home. Snowden

involved the alleged use of excessive force to execute an

arrest warrant in a hotel lobby. See 72 F.4th at 247.

The Seventh Circuit concluded that Bivens encompassed

“run-of-the-mill allegations of excessive force during an

arrest,” whether in a “[h]otel or home” and with “[a]

warrant” or with “no warrant.” Ibid. In Logsdon, the

plaintiff alleged that officers used excessive force to execute an arrest warrant outdoors. See 91 F.4th at 1356.

Although the Tenth Circuit ultimately rejected the extension of Bivens on the basis of other differences, id.

at 1358, the court “agree[d]” with the plaintiff that “the

warrant and the location of the arrest have no legal significance in an excessive-force case.” Id. at 1357.

By contrast, two courts of appeals—the Fifth Circuit

in Byrd v. Lamb, 990 F.3d 879 (2021), cert. denied, 142

S. Ct. 2850 (2022), and the Ninth Circuit in Mejia v. Miller, 61 F.4th 663 (2022)—have declined to extend Bivens

to excessive-force claims arising outside the home. In

Byrd, the Fifth Circuit rejected a Bivens claim based

on the alleged use of excessive force in a parking lot.

See 990 F.3d at 880-881. The court emphasized that the

claim “arose in a parking lot, not a private home as was

the case in Bivens.” Id. at 882. Similarly, in Mejia, the

Ninth Circuit rejected a Bivens claim based on the use

of excessive force on public lands. See 61 F.4th at 665666. The court found it significant that “none of the

events in question occurred in or near [the plaintiff ’s]

home.” Id. at 668.

The Fourth Circuit, meanwhile, has distinguished

among excessive-force claims based on whether they

arise out of the execution of a warrant. In Orellana v.

Godec, 145 F.4th 516 (4th Cir. 2025), the court declined

to recognize a Bivens action based on the use of excessive force to effectuate an arrest—even though the arrest occurred in the plaintiff ’s apartment—because

“the officers acted under a warrant.” Id. at 525. The

court stated that “the Fourth Amendment sharply distinguishes between with-warrant and warrantless [arrests], treating the introduction of the warrant as a signal moment in the proceedings.” Ibid. (quoting Annappareddy v. Pascale, 996 F.3d 120, 135-136 (4th Cir. 2021)).

In short, this case squarely presents a 3-2-1 conflict

among the courts of appeals. An excessive-force claim

such as this one may proceed in the First, Seventh, and

Tenth Circuits; may not proceed in the Fifth and Ninth

Circuits because it arises outside the home; and may not

proceed in the Fourth Circuit because it arises out of

the execution of an arrest warrant.

Judges have acknowledged that circuit conflict. For

example, when the Tenth Circuit concluded that “[a]

warrant and location of the arrest have no legal significance in an excessive-force case,” it acknowledged that

“there is substantial authority to the contrary” and that

“other circuits have said that a new Bivens context exists when federal officials execute a valid warrant” or

“when the violation does not occur in the plaintiff ’s

home.” Logsdon, 91 F.4th at 1357. Similarly, the First

Circuit suggested in the decision below that, no matter

how it resolved this case, it could “hardly avoid a circuit

split.” App., infra, 22a; see id. at 20a. And Judge Lynch’s

dissent observed that the court’s decision “magnifies

existing circuit splits” regarding whether “the existence

of a warrant” or the occurrence of the relevant conduct

“outside the home” are “meaningful difference[s] from

Bivens.” Id. at 55a-56a. Judge Lynch added that “[t]he

Supreme Court may wish to address these circuit splits”

and to provide “additional guidance to lower court judges,

who in good faith have reached different outcomes.” Id.

at 45a n.11.

That conflict warrants this Court’s review. The question presented recurs frequently; as discussed above, in

just the last five years, six courts of appeals (the First,

Fourth, Fifth, Seventh, Ninth, and Tenth Circuits) have

decided cases about whether Bivens extends to excessiveforce claims arising out of arrests outside the home or

arrests authorized by warrants. The question presented

is also important; the court of appeals’ decision undermines the separation of powers by usurping a function,

the creation of new rights of action, that the Constitution generally reserves to the Legislative Branch.

Finally, this case is an excellent vehicle for resolving

the question presented. Petitioners contended in both

the court of appeals and the district court that this case

differs from Bivens because it involves an arrest with a

warrant outside the home, and both courts addressed

that argument on the merits. See App., infra, 16a, 66a67a. No jurisdictional or procedural obstacle would prevent the Court from reaching the question presented.

And because that question is a pure issue of law, no further factual development is necessary to resolve it.

C. Alternatively, This Court Should Hold The Petition

Pending The Resolution Of Nielsen

This Court has already granted review in Nielsen to

consider the continuing vitality and scope of Carlson,

the case that extended Bivens to certain claims brought

by prisoners alleging that prison staff violated the

Eighth Amendment through deliberate indifference to

their medical needs. See Pet. at 15-32, Nielsen, supra

(No. 25-417). Although this case involves a Fourth

Amendment claim under Bivens rather than an Eighth

Amendment claim under Carlson, Nielsen could affect

the proper resolution of this case.

In Nielsen, the court of appeals concluded that certain distinctions between that case and Carlson were

too insignificant to give rise to a new context. See Pet.

App. at 8a, Nielsen, supra (No. 25-417). The court in

that case also reasoned that the existence of alternative

remedies is relevant only “at the second step of the

Bivens analysis.” Id. at 15a. The court of appeals in

this case similarly concluded that the distinctions between this case and Bivens are insufficiently meaningful to give rise to a new context, see App., infra, 16a,

and that “the mere existence of a previously unconsidered” alternative remedy does not necessarily “ma[ke]

the context new,” id. at 27a. Nielsen could therefore

affect the court of appeals’ new-context analysis. As a

result, if this Court does not grant plenary review in this

case, it should hold the petition for a writ of certiorari

pending the resolution of Nielsen.

CONCLUSION

The petition for a writ of certiorari should be granted.

Alternatively, the petition should be held pending the

resolution of Nielsen v. Watanabe, cert. granted, No.

25-417 (June 22, 2026).

Respectfully submitted.

D. JOHN SAUER

Solicitor General

BRETT A. SHUMATE

Assistant Attorney General

CURTIS E. GANNON

Deputy Solicitor General

VIVEK SURI

Assistant to the

Solicitor General

MELISSA N. PATTERSON

JAYNIE LILLEY

Attorneys

JULY 2026

APPENDIX

TABLE OF CONTENTS

Page

Appendix A — Court of appeals opinion (Aug. 15, 2025) ...... 1a

Appendix B — District court order (June 27, 2023) ............ 58a

Appendix C — Court of appeals order denying rehearing

(Feb. 24, 2026) ......................................... 74a

(I)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 23-1618

ROBERT ARIAS, PLAINTIFF, APPELLANT

NOAH A. HERZON, JUAN INFANTE, TY KURCHARSKI,

CHRISTOPHER DAY, ADALBERTO GARCIA, MICHAEL

BERNARD, DEFENDANTS, APPELLEES,

US GOVERNMENT, US DRUG ENFORCEMENT

ADMINISTRATION, DEFENDANTS

Filed: Aug. 15, 2025

Appeal from the United States District Court for the

District of New Hampshire

[Hon. Landya B. McCafferty, U.S. District Judge]

Before BARRON, Circuit Judge, LYNCH, and THOMPSON, Circuit Judges.

BARRON, Chief Judge. More than a half a century ago,

in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme

Court of the United States recognized an implied cause

of action for damages against a federal law enforcement

officer for violating an individual’s Fourth Amendment

rights. Is that remedy still available? The U.S. District

Court for the District of New Hampshire held that it is

(1a)

not. This appeal requires us to decide whether that is

right.

The District Court based its ruling on a 1988 amendment to the Inspector General Act (IGA) that established an administrative mechanism for lodging misconduct complaints against federal law enforcement officers with the U.S. Department of Justice’s Office of the

Inspector General. 1 The District Court concluded that,

because of that legislative development, the Fourth

Amendment claims in this case arise in a new context

compared to Bivens. The District Court went on to conclude that the IGA’s “alternative remedial scheme”

counseled against extending the Bivens remedy to

that new context. And, on that basis, it held that the

defendants—U.S. Drug Enforcement Agency (DEA)

agents—were entitled to summary judgment on the

Fourth Amendment claims that the plaintiff—Robert

Arias—brought against them for excessive force and a

failure to intervene to prevent the use of that force.

We do not agree that Congress’s more than threedecades-old amendment to the IGA in and of itself

makes the context in which Arias’s claims arise new

compared to Bivens. Thus, because we conclude that,

the IGA aside, Arias’s excessive force claims arise in the

same context as Bivens, the Bivens remedy is available

here just as it was there. Indeed, were we to conclude

otherwise, we would have to conclude, incongruously,

The District Court stated that Congress created this remedy

through enacting the Inspector General Act of 1978, but Congress

did not extend that statute’s provisions to the Department of Justice

until 1988. Compare Inspector General Act of 1978, Pub. L. No. 95452, 92 Stat. 1101 (1978), with Inspector General Act Amendments

of 1988, Pub. L. No. 100-504, 102 Stat. 2515 (1988).

that the Bivens remedy has been a dead letter since the

IGA’s amendment, even though the Supreme Court has

reaffirmed the existence of that remedy in the years after that now decades-old legislative development.

Accordingly, we reverse the District Court’s grant of

summary judgment to the defendants on Arias’s excessive force claims. However, we affirm the grant of summary judgment to the defendants on his failure-to-intervene claims. We do so because Arias fails to explain

why, notwithstanding the distinct nature of the misconduct that those claims allege, they arise in the same context as Bivens. Nor does he explain why, insofar as

those claims do arise in a new context, the Bivens remedy should be extended to it.

In 2017, Arias brought a suit for damages in the District of New Hampshire against federal DEA agents.

He sought the damages for the physical and emotional

harms allegedly caused by his September 2016 arrest,

which was undertaken pursuant to a warrant and in a

shopping center parking lot. He based the claims on the

implied cause of action for damages under the Fourth

Amendment that the Supreme Court recognized in

Bivens. His complaint alleges that some of the defendants violated his Fourth Amendment rights through

their use of excessive force, and that the others violated

his Fourth Amendment rights by failing to intervene to

prevent that excessive use of force.

The defendants moved for summary judgment based

on what was then the Supreme Court’s most recent decision in the Bivens line, Egbert v. Boule, 596 U.S. 482

(2022). They argued that, under Egbert, Arias could not

assert the implied cause of action for damages that

Bivens recognized as to any of his claims.

In Egbert, the Court described a two-step framework for assessing when a Bivens remedy is available.

Id. at 492. At the first step, a court must determine

whether the plaintiff ’s claims arise in a “new context”

compared to one of the cases in which the Court already

has recognized a damages remedy under Bivens. Id. If

the context is not new, then the inquiry ends and the

Bivens remedy may be asserted. Id.; Quinones-Pimentel v. Cannon, 85 F.4th 63, 70 (1st Cir. 2023). If the context is new, then a court must move on to the second

step. Egbert, 596 U.S. at 492. There, it must determine

whether there are “special factors counselling hesitation” in extending the Bivens remedy to that new context. Ziglar v. Abbasi, 582 U.S. 120, 136 (2017); see Egbert, 596 U.S. at 492. If the court concludes that there

is such a factor, then it must conclude that the Bivens

remedy is not available. Egbert, 596 U.S. at 492.

As to the first step, the defendants argued that

Arias’s claims arise in a new context because, unlike the

alleged misconduct in Bivens itself, the misconduct that

he alleged: (1) was undertaken pursuant to a warrant,

(2) occurred in a publicly accessible parking lot, and (3)

included a claim based on a failure to intervene to prevent the excessive use of force. As to the second step,

the defendants argued that there are “special factors

counseling hesitation” that preclude extending the

Bivens remedy to that new context. They pointed to

both the IGA’s administrative remedy and the availability of damages against the United States under the postBivens amendments to the Federal Tort Claims Act

(FTCA).

The District Court granted the defendants’ summary

judgment motion. It considered Arias’s excessive force

claims separately from his failure-to-intervene claims.

The District Court observed that Arias’s excessive

force claims “share[d] many of the same background

facts” with Bivens: “an arrest made by federal narcotics

agents investigating a violation of federal drug laws that

would have been routine but for the alleged constitutional violations.” It also recognized that Arias’s excessive force claims named the same category of defendants as the claims in Bivens, even though Bivens involved claims against agents from the Federal Bureau

of Narcotics. The functions of that agency, the District

Court noted, had been transferred to the DEA by the

time that the excessive force allegedly occurred. The

District Court observed, too, that Arias’s excessive force

claims alleged a violation of the same constitutional

right as the claims in Bivens, as the claims in that case

also alleged a violation of the Fourth Amendment right

against the use of excessive force.

In addition, the District Court expressly rejected the

defendants’ assertions that Arias’s excessive force claims

arise in a new context because the allegedly excessive

force occurred during an arrest that had been effectuated pursuant to a warrant and in a shopping center

parking lot. The District Court reasoned that, although

the search and arrest in Bivens were alleged to have

been carried out without a warrant and at the plaintiff ’s

home, those distinctions were not meaningful, and that

“[a]t bottom” Arias’s case “presents with facts virtually

indistinguishable from Bivens.”

Nonetheless, the District Court determined that the

similarities between Arias’s excessive force claims and

the claims in Bivens did not necessarily show that the

context was the same in the two cases. Rather, the District Court determined, based on its understanding of

Egbert and without the defendants having so argued,

that it also had to address a distinct possible basis for

Arias’s excessive force claims arising in a new context

compared to Bivens—namely, the availability under the

IGA of an administrative remedy.

The District Court observed that, under the IGA and

28 C.F.R. § 0.29c(c), Arias could file a misconduct report

about the defendants’ conduct with the U.S. Department

of Justice’s Office of the Inspector General and have his

allegations investigated and remedied administratively.

By contrast, the District Court noted, the plaintiff in

Bivens did not have available to him that same legislatively established means of administratively addressing

the misconduct that he alleged.

The District Court went on to determine that, under

Egbert, “the existence of the alternative remedial

scheme is enough to both place the case into a new context at the first step and to prohibit expanding Bivens at

the second step.” The District Court therefore determined that Arias could not assert an implied cause of action for damages under the Fourth Amendment as to his

excessive force claims. And it did so despite its conclusion that—setting the IGA aside—those claims arise in

the same context as in Bivens itself.

The District Court further concluded that the presence of the IGA’s scheme is a special factor counseling

hesitation in extending the Bivens remedy to a new context. And, finally, the District Court concluded that, because this remedial scheme is itself “sufficient to require

dismissal,” there was no need to decide whether the

damages remedy against the United States that, postBivens, the FTCA makes available to recover for uses of

excessive force by federal law enforcement officers

“might also foreclose Arias’s Bivens claims.”

The District Court next turned to Arias’s failure-tointervene claims. With respect to the first step of the

analytical framework that Egbert described, the District Court explained that “[r]egardless of whether a

failure-to-intervene claim is an alternative theory of liability or separate constitutional violation, Bivens did not

involve any theory that the defendant officers’ failure to

intervene should subject them to bystander liability.”

In the District Court’s view, therefore, Arias’s failureto-intervene claims arise in a new context compared to

Bivens. The District Court then explained that, as with

Arias’s excessive force claims, “the existence of an alternative remedial scheme [in the form of the IGA] [wa]s

sufficient to place the case in a new context and foreclose

[Arias’s] Bivens claim.”

Accordingly, the District Court granted summary

judgment to the defendants on Arias’s claims. Arias

timely appealed.

II.

We start with Arias’s challenge to the grant of summary judgment to the defendants on his excessive force

claims. Arias contends that, the IGA aside, the District

Court was right to treat the claims as arising in the same

context as Bivens. But he contends that the District

Court erred in ruling that, because of the IGA, the

claims necessarily arise in a new context compared to

Bivens. He thus argues that the District Court erred in

granting the defendants summary judgment on the

claims. We agree.

To explain why, we first describe the analytical

framework for determining whether a Bivens remedy is

available and how its two steps, though distinct, relate

to one another. We then address how that framework

applies to Arias’s excessive force claims.

“In Bivens, the Court held that a Fourth Amendment

violation by federal agents, acting under color of governmental authority, gave rise to a cause of action for money

damages against those agents in their individual capacities.” González v. Vélez, 864 F.3d 45, 52 (1st Cir. 2017).

The Court thereafter recognized implied causes of action for damages under the Constitution against federal

officers in two other contexts.

First, in Davis v. Passman, the Court recognized a

damages action under the Fifth Amendment that permitted a former congressional staffer to bring a sex discrimination claim against a Congressperson. 442 U.S. 228

(1979). Second, during the very next Term, in Carlson

v. Green, the Court recognized a damages action under

the Eighth Amendment against federal prison officials

for the inadequate medical treatment of a prisoner. 446

U.S. 14 (1980).

Since Carlson, however, the Court has made clear

that it is skeptical that there can be implied causes of

action. “Now long past ‘the heady days in which th[e]

Court assumed common-law powers to create causes of

action,’ ” the Court has explained, it has “come ‘to appreciate more fully the tension between’ judicially created

causes of action and ‘the Constitution’s separation of

legislative and judicial power.’ ” Egbert, 596 U.S. at 491

(first quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61,

75 (2001) (Scalia, J., concurring); and then quoting Hernandez v. Mesa, 589 U.S. 93, 100 (2020)).

“At bottom,” the Court has reasoned, “creating a

cause of action is a legislative endeavor.” Id. It even

has gone so far as to question whether, under this newer

view of implied causes of action, it would have decided

Bivens, Davis, or Carlson the same way. Id. at 502; Abbasi, 582 U.S. at 134.

Nonetheless, “[r]ather than dispense with Bivens altogether,” Egbert, 596 U.S. at 491, the Court merely has

“made clear that expanding the Bivens remedy is now a

‘disfavored’ judicial activity.” Abbasi, 582 U.S. at 135

(emphasis added) (quoting Ashcroft v. Iqbal, 556 U.S.

662, 675 (2009)). Thus, the Court has counseled that the

“watchword is caution” when a plaintiff ’s claim would

require an extension of one of the implied causes of action the Bivens line already recognizes. Egbert, 596

U.S. at 491 (quoting Hernandez, 589 U.S. at 101). And,

based on that “reluctan[ce] to create new causes of action,” the Court has consistently denied requests to extend the remedy recognized in Bivens, Davis, or Carlson. Hernandez, 589 U.S. at 101-02 (emphasis added).

At the same time, the Court has been careful to state

that Bivens itself is still good law. It therefore has made

clear that the cause of action recognized there remains

available. See Abbasi, 582 U.S. at 134 (“ The settled law

of Bivens in th[e] common and recurrent sphere of law

enforcement, and the undoubted reliance upon it as a

fixed principle in the law, are powerful reasons to retain

it in that sphere.”); Egbert, 596 U.S. at 502 (declining to

overrule Bivens). Indeed, in the wake of the Court’s in-

10a

vocation of law enforcement’s reliance on the “fixed

principle” Bivens established, Abbasi, 582 U.S. at 134,

courts have continued to permit damages actions

brought under Bivens. See, e.g., Snowden v. Henning,

72 F.4th 237, 243-44 (7th Cir. 2023), cert. denied, 145

S. Ct. 137 (2024); Hicks v. Ferreyra, 64 F.4th 156, 166

(4th Cir. 2023), cert. denied, 144 S. Ct. 555 (2024). Consistent with that view, we have repeatedly acknowledged

that the Bivens remedy continues to exist. See DeMayo

v. Nugent, 517 F.3d 11, 15 (1st Cir. 2008) (“An individual

may vindicate a proven violation of his or her right to be

free from unreasonable searches through a Bivens action.”); Quinones-Pimentel, 85 F.4th at 70 (explaining

that “[if] the case presents . . . no new context[,] . . .

relief under Bivens is available”).

Accordingly, it is doubtful that a plaintiff may seek

damages under the Fourth Amendment against federal

law enforcement officers under a cause of action that a

court would have to create.

But a plaintiff may do so pursuant to the cause of action that the Court recognized in Bivens.2

We do not understand Egbert to suggest otherwise in stating

that “recognizing a cause of action under Bivens is ‘a disfavored judicial activity,’ ” Egbert v. Boule, 596 U.S. 482, 491 (2022) (emphasis

added) (quoting Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)), given that

in Abbasi and Hernandez, the Court emphasized that “expanding the

Bivens remedy” was judicially disfavored. Abbasi, 582 U.S. at 135

(emphasis added); Hernandez, 589 U.S. at 101 (“We have stated that

expansion of Bivens is a ‘disfavored judicial activity.’ ” (cleaned up)

(quoting Abbasi, 582 U.S. at 135)); see also Egbert, 596 U.S. at 491

(referring multiple times in the same paragraph to “creating” a damages remedy).

11a

The first step of the two-step framework that Egbert

describes follows from the Court’s decision to affirm the

cause of action that Bivens recognized, see Abbasi, 582

U.S. at 134 (“Bivens does vindicate the Constitution by

allowing some redress for injuries . . . .”), but caution

against the creation of any new ones. At that step, as we

noted at the outset, a court must determine whether the

plaintiff, in seeking damages under the Bivens line, is

requesting the creation of a new cause of action or is

merely asserting a cause of action that the Court already has recognized.

How, then, is a court supposed to make that determination? The answer turns on whether the plaintiff ’s

claim “presents ‘a new Bivens context.’ ” Egbert, 596

U.S. at 492 (quoting Abbasi, 582 U.S. at 139).

The Supreme Court has made clear that the plaintiff ’s damages action arises in a new context if the case

is “ ‘meaningful[ly]’ different from the three cases in

which the Court has implied a damages action.” Id. (alteration in original) (emphasis added) (quoting Abbasi,

582 U.S. at 139). Consistent with this focus, the Court

has emphasized that “[s]ome differences, of course, will

be so trivial that they will not suffice to create a new

Bivens context.” Abbasi, 582 U.S. at 149 (emphasis

added). And we agree with the Seventh Circuit that the

Supreme Court’s requirement “[t]hat a difference must

be ‘meaningful’ suggests that some degree of variation

will not preclude a Bivens remedy.” Snowden, 72 F.4th

at 243-44.

In other words, it is most doubtful that Bivens, Davis,

and Carlson are tickets that may be used to reach a stop

12a

that is not already on the existing Bivens line of authority. But those tickets are not good only for those same

three stops. They also may be used for additional stops

on the same line that Bivens, Davis, and Carlson define.

What, then, makes a difference “meaningful,” such

that—again at this first step of the analysis—the context is “new”? The answer to that question is “a bit unclear,” Quinones-Pimentel, 85 F.4th at 69, as the Supreme Court has not provided an exhaustive accounting.

The Court has explained, however, that:

A case might differ in a meaningful way because of

the rank of the officers involved; the constitutional

right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how

an officer should respond to the problem or emergency to be confronted; the statutory or other legal

mandate under which the officer was operating; the

risk of disruptive intrusion by the Judiciary into the

functioning of other branches; or the presence of potential special factors that previous Bivens cases did

not consider.

Abbasi, 582 U.S. at 139-40 (emphasis added). It also has

made clear that when a case “ involves a ‘new category

of defendants,’ ” that is a meaningful difference which

renders the context new. Egbert, 596 U.S. at 492 (quoting Malesko, 534 U.S. at 68).

We agree with the Seventh Circuit that, in the end,

the inquiry is a functional one. As it has explained, “the

Court’s evolving Bivens guidance . . . suggest[s] that a

difference is ‘meaningful’ if it might alter the policy balance that initially justified the causes of action recognized in Bivens, Davis, and Carlson.” Snowden, 72 F.4th

13a

at 244. Thus, it has explained that “[i]f a case involves

facts or legal issues that would require reweighing the

costs and benefits of a damages remedy against federal

officials, then the difference is ‘meaningful’ because we

risk further encroachment on the legislative function rather than simply applying controlling Supreme Court

precedent.” Id. (emphasis added). It follows that if a

case does not involve facts or legal issues that would require such a reweighing, then the difference does not in

and of itself make the context new.

This functional approach accords with the fact that it

is only when a case presents a new context that we must

proceed to the second step of the analysis and ask

whether “there are any ‘special factors’ counseling

against extending Bivens” to that new context. Quinones-Pimentel, 85 F.4th at 70 (emphasis added) (quoting Egbert, 596 U.S. at 492). That question need not be

asked if the context is one in which the Supreme Court

already has performed the required “[ ]weighing” in recognizing—and then reaffirming—the implied causes of action in Bivens, Davis, or Carlson. Snowden, 72 F.4th at

244. In a context of that sort, the Court already has

asked and answered whether there is any “indicat[ion]

that the Judiciary is at least arguably less equipped than

Congress to ‘ weigh the costs and benefits of allowing a

damages action to proceed.’ ” Egbert, 596 U.S. at 492

(quoting Abbasi, 582 U.S. at 136). And, as a lower court,

we may not second-guess that determination once the

Court has made it, which is why we have explained that

“[i]f the case presents no meaningful differences (and

thus no new context), the analysis ends there and relief

14a

under Bivens is available.” 3 Quinones-Pimentel, 85 F.4th

at 70 (emphasis added).

All that said, Egbert does note that the two-step

analysis may in some cases present only a single question. Egbert, 596 U.S. at 492 (“While our cases describe

two steps, those steps often resolve to a single question:

whether there is any reason to think that Congress

might be better equipped to create a damages remedy.”). The very factor that may make a context new

may be the “special factor counseling hesitation” in extending the cause of action. See id. (“[ W ]e have identified

several examples of new contexts—e.g., a case that involves a ‘new category of defendants,’—largely because

they represent situations in which a court is not undoubtedly better positioned than Congress to create a

damages action.” (quoting Malesko, 534 U.S. at 68)); cf.

At oral argument, the defendants argued based on González v.

Vélez, 864 F.3d 45 (1st Cir. 2017), that we could reach step two of the

Bivens inquiry even if the case did not present a new context. They

apparently rested that contention on our statement in that case that

“even if we assume[d] for argument’s sake that the context [was]

substantially the same, the plaintiffs [would] hit a roadblock at the

next step of the analysis” regarding alternative remedies. Id. at 53.

But the plaintiffs there were attempting to use the cause of action

recognized in Davis v. Passman, 442 U.S. 228 (1979), to raise a claim

that “b[ore]” only a “superficial similarity” to Davis itself. González,

864 F.3d at 53. In assuming that the claims arose in “substantially

the same context,” we were merely assuming that they were “substantially” similar enough to warrant comparison to Davis in the first

place—not that the contexts were, in fact, the same. Thus, we proceeded to the second step of the analysis only because it was clear

that the context was new. See id. at 52 (explaining that the second

step alternative remedies inquiry applies only “[o]nce it is determined that the context is new ”).

15a

Snowden, 72 F.4th at 243 n.3 (“[S]ometimes the Court’s

cases do not explicitly address the ‘new context’ inquiry

because they do not need to—where, for example, the

case raises a claim under a different constitutional provision (like the First Amendment) or presents an obviously distinct factual setting (like the military).”). Relatedly, the special factor that counsels against extending the Bivens remedy to a new context also may be a

factor that in and of itself makes the context new. In

other words, in some cases the same factor may do double duty. Importantly, however, the Court was careful

to observe that the two-step inquiry “often” will reduce

to a single question, Egbert, 596 U.S. at 492 (emphasis

added), rather than that it always does so.

III.

We are now well situated to address the excessive

force claims under the first step of the analysis described in Egbert. With respect to that step, Arias emphasizes that, like the plaintiff in Bivens, his excessive

force claims seek damages under the Fourth Amendment for “unreasonable force . . . employed in making

[his] arrest.” Bivens, 403 U.S. at 389. He also emphasizes that, like the plaintiff in Bivens, he names line law

enforcement officers as defendants in those claims.

Arias acknowledges that the defendants here were

employed by the DEA at the time of the alleged misconduct, while the defendants in Bivens were employed by

the Federal Bureau of Narcotics. He contends that this

difference is not meaningful, though, because the DEA

is the successor to that now-defunct agency. See United

States v. Feola , 420 U.S. 671, 684 n.18 (1975).

16a

Arias also points out that the “judicial guidance” as

to what constitutes excessive force under the Fourth

Amendment is at least as clear now as it was at the time

of Bivens. See Abbasi, 582 U.S. at 140; see also Graham v.

Connor, 490 U.S. 386, 395-97 (1989) (outlining the relevant inquiry); Cnty. of Los Angeles v. Mendez , 581 U.S.

420, 427 (2017) (noting that the “case law sets forth a

settled and exclusive framework for analyzing whether

the force used in making a seizure complies with the

Fourth Amendment”); Lachance v. Town of Charlton,

990 F.3d 14, 20 (1st Cir. 2021); O’Brien v. Town of Bellingham, 943 F.3d 514, 530-31 (1st Cir. 2019). So, again, he

argues, his excessive force claims do not arise in a new

context.

Of course, “even a modest extension is still an extension.” Abbasi, 582 U.S. at 147. Thus, despite the many

parallels between Arias’s excessive force claims and the

claims in Bivens, we must remain alert for any “meaningfully new factual circumstances.” Quinones-Pimentel,

85 F.4th at 70.

The defendants highlight three factual circumstances

that they argue—either when taken together or considered on their own—render the context here new. See id.

at 72 n.6 (concluding that multiple “differences, collectively, [can] distinguish [a] case meaningfully from

Bivens”). The three circumstances are: the presence of a

warrant, the public location of the arrest, and the presence of a post-Bivens alternative remedy via the IGA.4

The defendants also contend that Arias’s “inclusion of a failureto-intervene claim” counts among the “factors” that place his case

into a new context. But they identify no support for the notion that

this separate claim could bear on whether Arias’s excessive force claims

17a

We start with the first two circumstances even

though the District Court relied solely on the third in

finding the context here new. Reviewing de novo, Quinones-Pimentel, 85 F.4th at 68, we are not persuaded

that either one of these two circumstances shows that

Arias’s excessive force claims arise in a new context. We

then consider the third circumstance—the presence of

the IGA’s administrative remedy. Reviewing de novo,

id., we conclude that this circumstance also fails to make

the context new.

As to their possession of a warrant, the defendants

direct our attention to Abbasi. The Court explained

there that a “case might differ in a meaningful way because of . . . the statutory or other legal mandate under

which the officer was operating.” Abbasi, 582 U.S. at

139-40. The defendants point out that, when assessing

the reasonableness of a use of force, courts must consider, among other factors, the severity of the crime.

See Graham, 490 U.S. at 396. They go on to contend

that, when a warrant is issued, the severity of the crime

depends “not solely on the judgment of the officer on the

scene, but on the probable cause determination of a neutral and detached magistrate.” They therefore contend

that we must conclude that law enforcement officers

who use force while acting pursuant to a warrant operate under a different legal mandate than do law enforcement officers who use such force while not acting pursuant to a warrant. And so, the defendants argue, because

the officers in Bivens did not have a warrant, Bivens, 403

present a new context. So, we analyze whether that claim presents a

new context in Part IV.

18a

U.S. at 389, the officers here were operating under a different legal mandate.

We are not convinced. Arias alleges that the defendants violated his Fourth Amendment rights by using excessive force—not by conducting an unreasonable

search or merely effecting an unlawful seizure. While

“the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of

physical coercion or threat thereof to effect it,” Graham,

490 U.S. at 396, it plainly does not provide a “ legal mandate” to use excessive force, see Abbasi, 582 U.S. at 13940.

That an arrest warrant requires a “neutral and detached magistrate” to determine probable cause also

does not show that the officers here were operating under a different legal mandate. The judicial determination to grant an arrest warrant was not a determination

that excessive force may be used to execute that warrant

or, quite obviously, that the force in fact used was not

excessive. Nor was that judicial determination an assessment of the severity of the crime to which the warrant pertains. It was an assessment of whether there

was a sufficient basis for an arrest, not of the underlying

crime’s severity.

That Congress could think that an arrest with a warrant differs from an arrest without one is therefore of

little relevance here. The use of excessive force in effectuating an arrest is equally excessive regardless of

whether an arrest is made pursuant to a warrant. We

thus do not see how the presence of a warrant here constitutes a meaningful difference from Bivens, given the

nature of the claims at issue. That is especially so because nothing in Bivens appears to have turned on the

19a

officers not having a warrant when using the allegedly

excessive force. See generally Bivens, 403 U.S. 388.

Nor are we alone in so holding. See Snowden, 72 F.4th

at 247; Logsdon v. U.S. Marshal Serv., 91 F.4th 1352,

1357 (10th Cir. 2024).

The cases relied on by the defendants—and the

dissent—do not persuade us otherwise. Those cases involved claims targeting unreasonable searches and other

factors that clearly gave rise to a new context compared

to Bivens. See Cain v. Rinehart, No. 22-1893, 2023 WL

6439438, at *3-4 (6th Cir. July 25, 2023) (unreasonable

search and new category of defendant); Quinones-Pimentel, 85 F.4th at 72 (same); Annappareddy v. Pascale,

996 F.3d 120, 135-36 (4th Cir. 2021) (same, along with a

different injury).

Cienciva v. Brozowski, No. 3:20-CV-2045, 2022 WL

2791752 (M.D. Pa. July 15, 2022), which the defendants

also cite, did conclude that the presence of a warrant is

a meaningful difference that places an excessive force

claim into a new context. Id. at *9-11. The claim there,

however, also involved a new category of defendant,

which would squarely place the case into a new context.

Id.; see Egbert, 596 U.S. at 492. But, although the district

court in that case did not deem the context new on that

basis, we do not find the reasoning in Cienciva convincing—for all the reasons we already have given—insofar

as the district court concluded that the warrant on its

own made the context for an excessive force claim new.

The dissent, for its part, invokes Cantú v. Moody, 933

F.3d 414, 423 (5th Cir. 2019), to show that the Fifth Circuit has “held that the existence of a warrant amounts

to a meaningful difference from Bivens.” But that case

did not involve an argument that the presence of a war-

20a

rant independently rendered the context new. Nor did

the Fifth Circuit hold there what the dissent asserts that

it held. It merely observed that the “claim [in that case]

involve[d] different conduct” than in Bivens because the

claim was premised on the allegation that the defendant

“falsified affidavits” rather than that “the officers entered his home without a warrant or violated his rights

of privacy.” Id. The Fifth Circuit thus concluded that

the context was new because the extent of judicial guidance “differs across the various kinds of Fourth Amendment violations” and the plaintiff ’s claims involved “different officers from a different agency.” Id.

So, while our dissenting colleague accuses us of creating a circuit split, the dissent would hardly avoid one.

Under the approach that the dissent favors, our circuit

would be directly at odds with the Seventh and Tenth

Circuits.

As to the excessive force having allegedly occurred

here in a publicly accessible parking lot, it is true that

the alleged misconduct in Bivens occurred at a private

home. It is also true that the place where an alleged

Fourth Amendment violation occurs can be a meaningful difference. See Hernandez, 589 U.S. at 103. But the

location where the misconduct occurred here—the parking lot of a privately owned shopping center—does not

trigger the kind of acute separation of powers concerns

that made the “cross-border” context at issue in Hernandez meaningfully different from the context of

Bivens itself. Id.

Moreover, the fact that the allegedly excessive force

took place in a parking lot rather than at a private home

21a

does not risk “alter[ing] the policy balance that initially

justified the cause[] of action recognized in Bivens” as

“a separation-of-powers matter.” Snowden, 72 F.4th at

244, 247. As the Seventh Circuit well put it in considering a claim of excessive force that allegedly occurred in

the lobby of a hotel, “[h]otel or home, warrant or no warrant—the claims here and in Bivens stem from run-ofthe-mill allegations of excessive force during an arrest.”

Id. at 247; see also id. (distinguishing the excessive force

claim from one that allegedly occurred “in a government

facility”).

We also do not see how the location, when combined

with the fact that the arrest is alleged to have been made

pursuant to a warrant, makes the context here meaningfully different from the context in Bivens. Nor do the

defendants explain why, when these two features are

considered together, their interaction would require a

different conclusion than when either is considered

alone.

The dissent does correctly note that in Byrd v. Lamb,

990 F.3d 879, 882 (5th Cir. 2021), the Fifth Circuit concluded that the fact that the “case arose in a parking lot,

not a private home as was the case in Bivens,” was a

meaningful difference. But because the Fifth Circuit

provided no explanation for why that difference would

be meaningful, we do not find its decision persuasive.

The dissent cites Mejia v. Miller, 61 F.4th 663, 668

(9th Cir. 2023), for the proposition that “challenged conduct outside the home amounts to a meaningful difference from Bivens.” The challenged conduct there, however, was alleged to have “occurred on public lands managed by” a new category of defendants—officers from

the Bureau of Land Management—who were also oper-

22a

ating under a different legal mandate. Id. So, the public location of that violation—unlike the location at issue in

the case before us—does appear to have raised separation of powers concerns of the kind that the Supreme

Court has suggested are meaningful.

Once again, moreover, our dissenting colleague fails

to acknowledge that we would hardly avoid a circuit split

if we were to affirm the ruling below. Given the holdings

by the Seventh Circuit in Snowden, 72 F.4th at 247, and

the Tenth Circuit in Logsdon, 91 F.4th at 1357, the dissent’s favored approach would deepen one.

The dissent does invoke Florida v. Jardines, 569 U.S.

1 (2013). But that case does not show that the location of

the alleged misconduct here makes the context new.

Unlike Bivens and this case, Jardines involved an alleged search, not a claim of excessive force. See id. at 6-7.

The distinction is significant. An excessive force claim

takes aim at the extent of the force used against the person rather than the extent to which an expectation of

privacy has been infringed or a trespass has occurred.

So, Payton v. New York, 445 U.S. 573 (1980), and United

States v. Karo, 468 U.S. 705 (1984), are no different from

Jardines in that they also implicate concerns about privacy rather than excessive force. And because QuinonesPimentel, 85 F.4th at 71-72, like Jardines, involved an

unlawful search, the dissent’s reliance on it is similarly

misplaced.

That there may be a greater likelihood of other people being present in a parking lot may bear on the privacy interests involved. But we do not see how, in its

nature, the physical location being a parking lot on its

own bears on the reasonableness of the level of force

23a

used, such that the involvement of this location risks “alter[ing] the policy balance that initially justified the

cause[] of action recognized in Bivens” as “a separationof-powers matter.” Snowden, 72 F.4th at 244, 247.

Insofar as our focus is on the nature of the allegedly

unconstitutional conduct alleged, we also do not see how

allowing a damages action here would risk any more

“disruptive intrusion” into the “functioning of other

branches” than Bivens itself already permits. Abbasi,

582 U.S. at 140. The right asserted here is the same as

that asserted in Bivens—a right under the Fourth

Amendment against the excessive use of force by officers

at the successor agency in Bivens.

We come, then, to the final feature of this case that

the defendants contend makes the context in which

Arias’s excessive force claims arise “meaningfully different”—and so new. That feature, on which the District Court also relied, is the post-Bivens enactment in

1988, through an amendment to the IGA, of an administrative mechanism for lodging a complaint about misconduct by a federal law enforcement officer. For the

reasons explained below, we are not persuaded that this

legislative development renders this context new, even

accounting for the other supposedly distinguishing factual circumstances addressed above.

To start, we recognize that the District Court understood Egbert to require the conclusion at step one that

the IGA’s administrative remedy rendered the context

for Arias’s excessive claims new. We also recognize that

Egbert held that a plaintiff could not assert a Fourth

24a

Amendment claim for damages against a federal Border

Patrol agent for the use of excessive force in part because the existence of an administrative process for

lodging misconduct complaints against the agent was a

“special factor” that counseled against authorizing the

Bivens cause of action there. See Egbert, 596 U.S. 493-94,

497-98.

The Supreme Court expressly noted in Egbert, however, that, in so holding, it was addressing only the second step of the Bivens analysis, not the first. Id. As the

Supreme Court explained, the Ninth Circuit had held

below that the Fourth Amendment claims in that case

arose in a new context. Id. at 494.

Moreover, the Ninth Circuit had not deemed the context new because there was an administrative remedial

scheme for lodging complaints against federal Border

Patrol agents. Boule v. Egbert, 998 F.3d 370, 387 (9th

Cir. 2021), rev’d on other grounds, 596 U.S. 482 (2022).

It had done so only for other reasons. Id. In fact, the

defendants had not invoked that administrative scheme

as a reason to conclude that no Bivens remedy was available. See Egbert, 596 U.S. at 497 n.3. The Ninth Circuit

then went on to hold, at the second step of the Bivens

analysis, that, notwithstanding the existence of other alternative remedies, Egbert, 998 F.3d at 387, 391-92,

there were no special factors that counseled against extending the Bivens remedy to the new context. So, in

seeking review in the Supreme Court, the defendants

were challenging only that latter aspect of the Ninth

Circuit’s holding, which they did by for the first time invoking the presence of the administrative remedy. See

Egbert, 596 U.S. at 497 n.3.

25a

As a result, in Egbert, the Supreme Court held only

that, at the second step of the analysis, the administrative

remedy there counseled against extending the Bivens

remedy to a new context. It did not hold that the administrative remedy in and of itself made the context new. Nor

did it have occasion to decide whether such a remedy in

and of itself ever could render a context new.

Even though the precise holding of Egbert does not

require us to conclude that the IGA’s administrative

remedy makes the context here new, we still must decide whether such a conclusion is warranted on some

other basis. But we note up front that there is good reason for us to be wary of arguments that there is.

The Supreme Court has been clear that “it is this

Court’s prerogative alone to overrule one of its precedents.” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). It

is thus of some significance that, although Congress

amended the IGA to create the administrative remedy

that supposedly spelled Bivens’s demise nearly forty

years ago, see Inspector General Act Amendments of

1988, Pub. L. No. 100-504, 102 Stat. 2515 (1988), the Supreme Court has repeatedly and recently declined to

overrule Bivens, see, e.g., Abbasi, 582 U.S. at 134 (reaffirming the “continued force” of Bivens within its existing context and observing that “no congressional enactment has disapproved of ” the three original Bivens decisions). And, in doing so, the Court has recognized that

the “undoubted reliance” on “the settled law of Bivens

in th[e] common and recurrent sphere of law enforcement” is itself a “powerful reason[] to retain it in that

sphere.” Id.; see also id. (noting that Bivens not only

“vindicate[s] the Constitution by allowing some redress

26a

for injuries,” but also “provides instruction and guidance to federal law enforcement officers going forward”); cf. Dickerson v. United States, 530 U.S. 428, 443

(2000) (declining to overrule Miranda v. Arizona, 384

U.S. 436 (1966), in part because “Miranda has become

embedded in routine police practice to the point where

the warnings have become part of our national culture”).

If we were to conclude that the IGA makes the context here new, however, then we would have to endorse

the view that the remedy Bivens recognized is no longer

available, notwithstanding the Court’s determination

that there are “powerful reasons to retain it.” Abbasi,

582 U.S. at 134. And we would also have to believe that

this state of affairs has prevailed for nearly four decades, but that no one, including the Supreme Court, has

noticed. For, if the original Bivens cause of action were

no longer available due to the IGA’s amendment in 1988,

then there would have been no need for the Court to

have considered the need for Bivens’s extension in cases

in which similar administrative complaint mechanisms

were available. Yet, the Court has done so nonetheless.

See Hernandez, 589 U.S. 93; Egbert, 596 U.S. at 497

(considering whether to “superimpos[e]” a Bivens remedy onto an administrative remedy that allows “[a]ny

person[ ]” to “lodge a complaint” with the Department of

Homeland Security’s Office of Inspector General (quoting 8 C.F.R. § 287.10(b))). 5 And it would be hard to unThe dissent asserts that the length of time that has passed since

the IGA’s adoption provides no reason to be skeptical that it spelled

the end of Bivens seemingly for all claims against federal law enforcement officers. The dissent asserts that this passage of time reveals only that Congress has not seen fit to review the silently buried

Bivens cause of action during that time. But this misapprehends our

reason for emphasizing the vintage of the IGA. During that time,

27a

derstand why in 2017 the Court thought it important to

account for “the undoubted reliance” on the “settled law

of Bivens” by “federal law enforcement officers going

forward” if it were evident by then that the Bivens remedy had been unavailable for nearly three decades. Abbasi, 582 U.S. at 134.

We do not lightly ascribe to the Supreme Court a misapprehension about the continuing vitality of its own

precedents. And, as a lower court, we are required to

follow the Court’s precedents, not treat them as but

shells of their former selves. See Agostini v. Felton, 521

U.S. 203, 237 (1997) (“[W]e do not hold[ ] that other

courts should conclude our more recent cases have, by

implication, overruled an earlier precedent.”).

All that said, the Court has not been presented with

the precise question before us today: Does the IGA’s

administrative mechanism for lodging complaints place

a claim that otherwise arises in the same context as

Bivens in a new one? So, we must look closely at the

relevant precedents, including Egbert itself, to determine whether they require the District Court’s conclusion that Bivens, in essence, has been long dead. For the

reasons we next explain, we are not persuaded that they

do.

The Court has directly considered, in applying the

first step of the analysis, how an alternative remedy bears

on whether a context is new in exactly one case: Abbasi.

There, the plaintiffs, like the plaintiff in Carlson, alleged

the Court has itself repeatedly reaffirmed Bivens, which was a curious thing for it to be doing if that remedy was already a thing of the

past.

28a

“prisoner mistreatment” resulting in “compelling” injury.

582 U.S. at 147.

Abbasi reaffirmed the viability of the damages remedy that Carlson recognized. Id. at 134, 140. But the

Court then concluded, at the first step of the analysis,

that the context was new. Id. at 149.

Abbasi did so with reference, in part, to remedies

“that were not considered in the Court’s previous Bivens

cases.” Id. at 148. Thus, it does make clear that previously unconsidered alternative remedies may be relevant at the first step, and it thereby accords with its own

instruction that a “case might differ in a meaningful way

because of . . . the presence of potential special factors

that previous Bivens cases did not consider.” Id. at 13940 (emphasis added).

Nonetheless, Abbasi did not suggest that the mere

existence of a previously unconsidered administrative

mechanism for lodging misconduct complaints made the

context new. And that was so even though, by the time

of Abbasi, such a previously unconsidered administrative mechanism—the Administrative Remedy Program

(ARP), 28 C.F.R. § 542—was in place.

The Abbasi Court was well aware, moreover, of the

ARP, which it knew had not been considered in Carlson

and which provided that inmates could “ file[]” “grievances” regarding “an issue which relates to any aspect

of their confinement[].” Malesko, 534 U.S. at 74 (quoting 28 C.F.R. § 542.10 (2001)). Indeed, in Malesko, the

Court had explicitly relied on the ARP’s remedy in declining to extend the Carlson remedy to a new class of

defendants at the second step of the analysis. Id. at 74.

And Abbasi even cited to that portion of Malesko’s anal-

29a

ysis repeatedly, see 582 U.S. at 136, 137, 140, 145, including in its discussion at the first step of whether the context was new, id. at 139.

At the first step, however, Abbasi identified meaningful differences other than the presence of the ARP.

Specifically, the Court first pointed to the fact that the

plaintiffs in Abbasi, unlike the plaintiff in Carlson (who

alleged under the Eighth Amendment that prison officials’ provision of inadequate medical care resulted in

acute harm, see Carlson, 446 U.S. at 16 n.1), alleged that

a warden’s supervisory failures resulted in continuing

violations under the Fifth Amendment, see 582 U.S. at

148. The Court then also observed that, seemingly in

consequence of this difference, the plaintiffs in Abbasi

had remedies other than damages that the plaintiff in

Carlson did not. And the Court identified those remedies as being only a writ of habeas corpus, “an injunction

requiring the warden to bring his prison into compliance

with [prison] regulations[,] . . . or some other form of

equitable relief.” Id.

Finally, Abbasi pointed to “legislative action” that

Carlson had not considered as a meaningful difference.

Id. Here, the Court focused on the enactment of the

Prison Litigation Reform Act of 1995, Pub. L. No. 104-134,

110 Stat. 1321 (1996) (PLRA), which had mandated among

other things that prisoners avail themselves of the ARP

before filing suits against prison officials. 6 Indeed, in

Although the ARP existed at the time that Carlson was decided,

Koprowski v. Baker, 822 F.3d 248, 256 (6th Cir. 2016) (citing 44 Fed.

Reg. 62248-51 (Oct. 29, 1979)), it was a remedy that Congress had

not “affirmatively . . . requested or required.” McCarthy v. Madigan, 503 U.S. 140, 149 (1992) (noting that the ARP was “neither enacted nor mandated by Congress”). After Carlson, however, Congress

30a

referencing the PLRA, the Court in Abbasi explicitly

observed that in an earlier case it “ha[d] said in dicta

that the [PLRA’s] exhaustion provisions would apply to

Bivens suits.” Abbasi, 582 U.S. at 148-49; see Porter v.

Nussle, 534 U.S. 516, 524 (2002) (“ Thus federal prisoners suing under Bivens v. Six Unknown Fed. Narcotics

Agents, must first exhaust inmate grievance procedures

just as state prisoners must exhaust administrative processes prior to instituting a § 1983 suit.” (citation omitted)). But Abbasi did not suggest that the ARP in and

of itself made the context there new. It explained that

because the PLRA addressed when and how suits may

be brought against prison officials without providing a

damages remedy, that statute arguably “suggest[ed

that] Congress chose not to extend the Carlson damages

remedy to cases involving other types of prisoner mistreatment.” Abbasi, 582 U.S. at 149, 148 (emphasis added).

Accordingly, while Abbasi addressed the import of alternative remedies at the first step, it did not do so in a

way that suggests that an administrative remedy like

the IGA’s in and of itself makes a context new, such that

the presence of that remedy would render the context

new even in a case in which the plaintiff alleged the exact

same type of prisoner mistreatment as the plaintiff in

Carlson alleged. In fact, despite the presence in Abbasi of

the previously unconsidered congressionally blessed

ARP, the Court focused its new-context analysis in that

case only elsewhere.

required the exhaustion of that administrative remedy through the

PLRA. See Woodford v. Ngo , 548 U.S. 81, 8485 (2006).

31a

Of course, there is only so much insight that can be

gleaned from what the Court did not do in Abbasi. But the

fact that Abbasi did not rely on the ARP at the first step

would be less worthy of note if the Court had elsewhere—even once—relied on the introduction of such an

administrative remedy to find a context new. As it turns

out, though, we have not come across any case in which

the Court has done so. Nor do the defendants identify one.

The dissent seems to suggest that it has found a few

such cases. The only one that the dissent identifies that

in fact considers alternative remedies in applying the

first step, though, is Abbasi itself. Otherwise, to support

its contention that, under Supreme Court precedent, the

presence of an alternative remedial structure is sufficiently meaningful to create a new context, the dissent

relies exclusively on the Court’s statements regarding

step two. See Egbert, 596 U.S. at 493 (“If there are alternative remedial structures in place, ‘that alone,’ . . .

is reason enough to ‘limit the power of the Judiciary to

infer a new Bivens cause of action.’ ” (emphasis added)

(quoting Abbasi, 582 U.S. at 137)); Goldey v. Fields, 606

U.S. 942, 944-45 (2025) (explaining that the fact that “ ‘an

alternative remedial structure’ already exists” is a

“ ‘special factor[ ] ’ counsel[ing] against . . . extending

Bivens” (emphasis added)); Malesko, 534 U.S. at 70, 74

(listing the presence of alternative remedies as one “reason[] that foreclose[s] [Bivens’s] extension here” (emphasis added)); Bush v. Lucas, 462 U.S. 367, 388 (1983)

(referring to “whether an elaborate remedial system . . .

should be augmented by the creation of a new judicial remedy” (emphasis added)).

32a

We do not see how the language about step two that

the dissent relies on demonstrates that the presence of

an alternative remedial structure is sufficiently meaningful to create a new context at step one. The Court

reiterated just this past Term that we only reach step

two “if” we first conclude that “the case is ‘different in a

meaningful way’ from the cases in which th[e] Court has

recognized a Bivens remedy” and thus “presents ‘a new

Bivens context.’ ” Goldey, 606 U.S. at 944 (quoting Abbasi, 582 U.S. at 139); see id. (explaining that “[i]f [the

case presents a new context], we then ask whether there

are ‘special factors’ ” that counsel against extending Bivens

to that new context (emphasis added)).

The dissent does appear to take issue with the need

for us to adhere to the two-step framework, seemingly

suggesting that what once were two steps now are better

understood as one. It does so, apparently, based on the

idea that any factor that would counsel hesitation in extending Bivens to a new context is necessarily also a factor that makes a context new. But, insofar as the dissent

finds support for that position in Egbert, we fail to see how

it is there.

Egbert was itself decided at the second step of the

analysis. And, our own precedents do not comport with

such a reading of Egbert. See Quinones-Pimentel, 85

F.4th at 70 (explaining, after Egbert, that “[i]f the case

presents no meaningful differences (and thus no new

context), the analysis ends there and relief under Bivens

is available”).

True, Egbert did state, as we have noted, that the “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.” 596 U.S. at

33a

492 (emphasis added). Egbert also characterized its

prior “expla[nation] that a new context arises when there

are ‘potential special factors that previous Bivens cases

did not consider’ ” as an “example” of how the “two steps

. . . often” merge. Id. (quoting Abbasi, 582 U.S. at 140).

Egbert supported that proposition, though, by citing

Abbasi. And that case simply instructs that the presence

of “potential special factors that previous Bivens cases

did not consider” is one way in which “[a] case might differ in a meaningful way.” Abbasi, 582 U.S. at 139-40 (emphasis added).

Moreover, in the paragraph preceding that statement, the Court in Egbert reiterated that “whether [a]

case presents ‘a new Bivens context’ ” depends on whether

it is “ ‘meaningful[ly]’ different from the three cases in

which the Court has implied a damages action.” Egbert,

596 U.S. at 492 (alteration in original) (quoting Abbasi,

582 U.S. at 139). Thus, while Egbert observed that “a

new context arises when there are ‘potential special factors that previous Bivens cases did not consider,’ ” id.

(quoting Abbasi, 582 U.S. at 140), we do not understand

the Court to have impliedly rejected Abbasi’s core premise

that a “potential special factor that previous Bivens

cases did not consider” makes a context new only if that

factor makes the context different in a way that is meaningful. See Nat’l Pork Producers Council v. Ross, 598

U.S. 356, 373-74 (2023) (emphasizing that the Court’s

opinions cannot “always . . . be parsed as though . . .

dealing with the language of a statute” and “must [instead] be read with a careful eye to context” (quoting

Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979))). In

that respect, Egbert’s “example” accords with the general requirement that, to reach step two, the context

34a

must be “ ‘meaningful[ly]’ different” from the one in

which the Bivens remedy has been recognized by the

Court. Id. (alteration in original) (quoting Abbasi, 582

U.S. at 139); see also Goldey, 606 U.S. at 944; QuinonesPimentel, 85 F.4th at 70.

Consistent with this understanding of Egbert, we

emphasize that when a “potential special factor[] that

previous Bivens cases did not consider” shows that the

case is meaningfully different, that same “special factor[]” will almost always counsel against allowing the

damages remedy. 596 U.S. at 492 (quoting Abbasi, 582

U.S at 140). But, conversely, if a “potential special factor[] that previous Bivens cases did not consider” fails

to show the case is meaningfully different, then the case

does not present a new context and the plaintiff may use

the existing Bivens cause of action. Id. (quoting Abbasi,

582 U.S. at 140).

After all, in that latter type of case, a court need not

“create a damages remedy.” Id. It need only apply the

one that the Court already has recognized. Accordingly,

Egbert’s “single question” could not be presented. Id.

Thus, we do not understand Egbert, in observing that

the “two steps . . . often resolve to a single question,”

to have relieved courts of their duty to engage in the

general new-context inquiry. Indeed, in the sentences

surrounding that observation in Egbert, the Court

makes clear that its focus is on whether a court may

“fashion” or “creat[e] . . . a new judicial remedy.” Id. at 493

(quoting Bush, 462 U.S. at 388). And, in a context that does

not meaningfully differ from the existing Bivens cases,

a court would not be “infer[ring],” “fashion[ing],” or

“creat[ing]” a “new” “Bivens cause of action,” id., because a Bivens cause of action plainly already exists, id.

35a

at 493 n.2 (noting that there are contexts “in which a

Bivens remedy is generally available” (quoting Hui v.

Castaneda, 559 U.S. 799, 807 (2010))). So, the inquiry

into whether there is reason to hesitate before entering

that uncharted ground need not be undertaken.

For these reasons, we cannot agree with the dissent’s

seeming suggestion that Egbert’s “single question”

discussion itself requires that we bypass the inquiry in

this case as to whether the IGA’s mechanism for lodging

complaints administratively constitutes a meaningful

difference from Bivens. Even if that scheme provides a

reason not to extend the Bivens remedy, it does not follow that the scheme constitutes the kind of meaningful

difference that gives rise to a new context. And we are

especially reluctant to conclude otherwise, when doing

so necessarily would spell Bivens’s demise in every context involving a Fourth Amendment claim.

The dissent also finds support for its position in the

Court’s latest word on Bivens—Goldey v. Fields, 606

U.S. 942 (2025). But we do not find that support there any

more than we find it in Egbert.

In Goldey, the Court reiterated that “[t]o determine

whether a Bivens claim may proceed, the Court has applied a two-step test.” Id. at 944. Then, in accord with the

undisputed positions of the parties and the Court of Appeals in that case, see Fields v. Fed. Bureau of Prisons,

109 F.4th 264, 270 (4th Cir. 2024) (“Fields concedes that

this case arises in a new context. We are thus faced solely

with step two . . . .”), the Court explained that the “case

arises in a new context.” Goldey, 606 U.S. at 944; see

also id. at 943 (explaining that an “Eighth Amendment

excessive-force claim” was not among the three contexts

in which the Court had “recognized” that “implied

36a

Bivens causes of action were permitted”). It was then—

and only then—that the Court went on to address, as one

would expect at the second step of the analysis, whether

there were “ ‘special factors’ counsel[ing] against recognizing an implied Bivens cause of action” in that new

context. Id. at 944. Analyzing those factors, it “declined

to extend Bivens to [this] new context[].” Id. at 945. If

anything, then, the two-step framework is, after Goldey,

even more solidly supported in the precedent than it already was.

In sum, we cannot agree that any precedent of the

Court holds that a previously unconsidered alternative

remedy akin to the IGA’s administrative mechanism for

lodging complaints in and of itself suffices to render a

context new. There is none that does.

The dissent also suggests that our own circuit’s precedents compel the conclusion that the IGA’s administrative remedy independently renders this context new. It

first suggests that we decided the question of whether

an alternative remedy is a special factor that independently creates a new context in González, 864 F.3d 45.

But the “special factors” language that the dissent relies

on in that case plainly draws from our analysis at step

two. See id. at 53 & n.5. We thus cannot agree that we

decided there the antecedent question of whether the

presence of a remedy that was not previously considered

is necessarily a difference that is meaningful.

The dissent also invokes our recent precedent in Waltermeyer v. Hazlewood, 136 F.4th 361 (1st Cir. 2025).

But that case did not involve any of the differences that

we are presented with here. The claims in Waltermeyer

37a

were premised on Carlson, rather than Bivens itself. Id.

at 362. So, we cannot see how the differences that we

found meaningful there—none of which concerned the

presence of an administrative means of lodging complaints about misconduct—are relevant to the question

presented here. Nor does the dissent explain why such a

comparison would be appropriate.

The dissent relies as well on cases from our sister circuits finding a context to be new. However, none of those

cases, save for one, held that there was an alternative

remedy that in and of itself made the context there new.

See Kalu v. Spaulding, 113 F.4th 311, 327-29 (3d Cir.

2024) (noting that “several factors render[ed] [the]

claim meaningfully different” including “a different kind

of officer misconduct” and the “heightened risk” of “judicial intrusion into a different aspect of federal prison

administration”); Logsdon, 91 F.4th at 1358-60 (first explaining that the case presented a new context because

it involved a “new category of defendant” and then describing “the availability of alternative remedies” as an

“independent ground for not . . . creat[ing] a remedy”

(emphasis added)); Johnson v. Terry, 119 F.4th 840, 859

(11th Cir. 2024) (listing the constitutional right and injury as among the “differences” that “ma[d]e th[e] [case]

a new context”); Lewis v. Bartosh, No. 22-3060-PR, 2023

WL 8613873, at *2 (2d Cir. Dec. 13, 2023) (finding a new

context, in part, based on the new category of defendant).7

The dissent also cites Bell v. Leavenworth U.S. Penitentiary, No.

24-3156, 2025 WL 1650187 (10th Cir. June 11, 2025), but that case

did not discuss the role of alternative remedies at any step of the

Bivens analysis, let alone the first, id. at *2.

38a

The one exception is Noe v. United States Government,

No. 23-1025, 2023 WL 8868491, at *3 (10th Cir. Dec. 22,

2023). But that case is an unpublished, nonbinding order.

And it rested on that panel’s understanding that its

prior decision, Silva v. United States, 45 F.4th 1134

(10th Cir. 2022), required it to foreclose Bivens relief

when faced with an alternative remedy “even if the factual context is not meaningfully different from” an existing

Bivens case, Noe, 2023 WL 8868491, at *3.

But while Silva is itself precedential, Noe’s interpretation of Silva’s holding is dubious. Silva explicitly recognized that a meaningful difference did place the plaintiff ’s claim into a new context—it noted that the “distinction between” the plaintiff ’s “excessive force” claim

and the “deliberate indifference to medical needs claim”

in Carlson was “sufficient to conclude that [his] claim

would require an extension of Bivens” and thus arose

within a new context. 45 F.4th at 1137; see also id.

(“[H]is claim clearly constitutes an expansion of Bivens.”).

That no case has turned up that adopts the dissent’s

view of the state of Bivens law should not be surprising.

In Bivens, Carlson, and Davis, the Court each time considered the context in which the claimed constitutional

violation arose. In light of that context, it then weighed

the need for a damages remedy against the individual

officer and concluded that it was proper to imply one.

Thereafter, the Court has reaffirmed each of those rulings despite knowing of administrative remedies it had

39a

not earlier considered (to say nothing of the damages

remedy that the FTCA was amended to provide). 8

Thus, while it is true that when the context is new,

we, as a lower court, must account for an administrative

remedy in weighing whether to extend an existing Bivens

remedy, we see little to suggest that we may treat the

existence of that remedy as an invitation to set aside the

Court’s prior calculus. And we are particularly disinclined

to infer that such a suggestion was intended when doing

so would entail the conclusion that the Bivens remedy

has long been a relic, despite the Court having affirmed its

continuing vitality and noted the “powerful reasons to

retain it.” Abbasi, 582 U.S. at 134.

We make one last observation: Congress itself has

given no indication that—contrary to its intent as expressed through the Westfall Act—it meant to “abrogate Bivens” in creating the administrative remedy at

issue here. Hernandez, 589 U.S. at 111 n.9. Certainly,

nothing in the text of the IGA suggests such an intent.

And, unlike the PLRA, to which Abbasi gave weight in

finding the context there new, the IGA does not purport

to address when or how Bivens suits may be brought.

Nor have we been able to identify any aspect of the

IGA’s statutory history that suggests a legislative aim

The Court has also demonstrated its awareness of the IGA in the

context of internal administrative remedies within other federal

agencies. See Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 52

(2015) (explaining that the IGA requires Amtrak to maintain an inspector general “much like [other] governmental agencies”); NASA

v. FLRA, 527 U.S. 229, 237-39 (1999) (discussing the IGA in the context of NASA).

40a

of limiting Bivens suits that otherwise would be available. In fact, Congress initially authorized the relevant

IGA remedy here just one month before it “explicit[ly]

except[ed]” “Bivens claims” from the Westfall Act’s exclusivity requirement. Hui, 559 U.S. at 807; compare Inspector General Act Amendments of 1988, Pub. L. No.

100-504, 102 Stat. 2515 (1988) (enacted October 18,

1988), with Federal Employees Liability Reform and

Compensation Act of 1988, Pub L. N. 100-694, 102 Stat.

4563 (1988) (enacted November 18, 1988).

To be sure, we are not addressing the distinct question—independent of the two-step framework—of whether

Congress has “preclude[d] a claim under Bivens” by “affirmatively foreclos[ing] one.” Egbert, 596 U.S. at 493 n.2;

see, e.g., Hui, 559 U.S. at 808 (concluding that “the text

of [the statute involved there] plainly indicates that it

precludes a Bivens action against petitioners for the

harm alleged in this case”). But the IGA’s statutory history does have relevance to the step-one issue that is at

hand.

To the extent that, through the Westfall Act, Congress

expressed its “clear” intent to “le[ave] Bivens where it

found it,” we cannot see why the IGA—which was enacted one month before the Westfall Act—should not be

understood to reflect that same intent. Hernandez, 589

U.S. at 111 n.9; cf. Merck & Co. v. Reynolds, 559 U.S.

633, 648 (2010) (“We normally assume that, when Congress enacts statutes, it is aware of relevant judicial

precedent.”). It would be surprising, to say the least, for

Congress to have made a point of leaving Bivens where

it found it if just a month before it had taken action that

it understood to have left Bivens for dead.

41a

As a result, the absence of any mention of Bivens in

the IGA, even in its legislative history, offers no sign

that Congress intended to leave Bivens in worse shape

than the Westfall Act did. Cf. Abbasi, 582 U.S. at 148-49

(considering “legislative action suggesting that Congress does not want a damages remedy”). If anything,

the silence offers further reason for us not to do what

the Court has so far declined to do—declare that, because of a decades-old legislative change codifying a

means of lodging internal complaints, the remedy recognized in Bivens may no longer be asserted in any context, no matter how similar the context otherwise is to

the one involved in Bivens itself. See Chisom v. Roemer,

501 U.S. 380, 396 n.23 (1991) (“Congress’ silence in this

regard can be likened to the dog that did not bark.” (citing A. Doyle, Silver Blaze, in The Complete Sherlock

Holmes 335 (1927))).

In the end, our task is to determine whether this case

arises in a new context relative to Bivens and then, if it

does, to determine whether there are special factors

counseling hesitation in extending the damages remedy

that Bivens recognized. That first step of that analysis

calls on us “to apply a familiar mode of judicial reasoning”: “determin[ing] if the case before [us] fits within the

Court’s still-valid—but now quite limited—precedent.”

Snowden, 72 F.4th at 244.

We thus must decide whether the differences between

this case and Bivens are meaningful, given the Court’s

reaffirmation of the result of the weighing that it did in

Bivens in recognizing the implied cause of action for

damages there. For the reasons we have explained, we

conclude that the differences here are not meaningful,

42a

in part because the relevant precedents fail to show that

the IGA is a legal development that “would require reweighing the costs and benefits of a damages remedy

against federal officials” as to the excessive force claims

in this case in a way that the Court has not already

weighed them in recognizing the cause of action in

Bivens itself. Id. at 244. Were we to conclude otherwise,

we would have to conclude that the Court has been reaffirming the existence of a remedy that had long since

ceased to exist.

Perhaps the Court will be convinced to conclude that

the IGA’s administrative mechanism for filing internal

complaints suffices to make this context new and so to

trigger a new weighing that supersedes the earlier one.

But, from where we sit, we cannot conclude that the

Court already has come to that conclusion and thereby

invited lower courts to render unavailable in any context

the remedy that it has deemed necessary in the context

that Bivens itself presented.

Accordingly, we conclude that the District Court

erred in relying on the IGA to decide that Arias’s excessive force claims arise in a new context. Moreover, the

defendants have failed to identify any other factual circumstances that, taken alone or together, suggest that

the differences between the plaintiff ’s excessive force

claims and those in Bivens are in any sense meaningful.9

In reaching this conclusion, we emphasize that we do not intend

to cast doubt on the possibility that other excessive force claims may,

in fact, present a new context. The outcome could be different if, for

example, the plaintiff alleged claims against a new category of defendants. Compare Carlson v. Green, 446 U.S. 14, 25 (1980) (recognizing a Bivens claim for Eighth Amendment claims of inadequate

medical treatment against federal prison officials), with Corr. Servs.

43a

We therefore conclude that the context here is not new

and that, as a result, we need not reach step two of the

Bivens analysis. See Quinones-Pimentel, 85 F.4th at 70

(explaining that if there is no new context “the analysis

ends there and relief under Bivens is available”). Accordingly, we reverse the grant of summary judgment to

the defendants on Arias’s excessive force claims.

IV.

Arias’s failure-to-intervene claims are a different

matter. The District Court also relied on the existence

of the IGA’s alternative remedy to dismiss those claims.

But, in addition, it identified another difference that it

concluded was meaningful: the absence of any bystander

liability claims in Bivens itself. Because Arias does not

raise on appeal any arguments that challenge this independent basis for the District Court’s ruling, we have no

reason to conclude that ruling was erroneous. See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

The judgment granting summary judgment to the

defendants is affirmed as to Arias’s failure-to-intervene

claims and reversed and remanded for further proceedings consistent with this decision as to Arias’s excessive

force claims.

—Concurring and Dissenting Opinion Follows—

Corp. v. Malesko, 534 U.S. 61, 70 (2001) (holding that an Eighth

Amendment inadequate medical treatment claim against a private

prison operator presented a new context).

44a

LYNCH, Circuit Judge (Concurring In Part and Dissenting

In Part). I concur in the majority’s affirmance of entry of

summary judgment in Arias’ failure-to-intervene claim.

I respectfully dissent from the majority ’s holding reversing entry of summary judgment against Arias’

Fourth Amendment excessive force claims. The majority misreads Supreme Court commands when it concludes that congressional amendment of the IGA, postBivens is not a “meaningful difference.” The majority

further errs in concluding that even if the IGA were a

meaningful difference, the IGA would not present a

“new context.” The majority incorrectly reasons that

“conclud[ing] otherwise would” require “conclud[ing],

incongruously, that the Bivens remedy has been a deadletter since the IGA’s amendment, even though the Supreme Court has reaffirmed the existence of that remedy in the years after that now decades-old legislative

development.”

The majority’s framing and answer are incorrect for

a number of reasons. It is precisely when Congress has

acted that the judiciary should not, to use the Supreme

Court’s terminology, “infer,” “authorize,” “enforce,”

“approve,” “find,” “prescribe,” “recognize,” “create,” or

“expand” a judicially created remedy for Fourth

Amendment excessive force claims. Congress is assuredly aware of Bivens and it has decided that the IGA remains in effect and is good law. Statutes, like court opinions, do not become inoperative because they were enacted decades ago.

The premises of the majority’s reasoning are themselves inaccurate. The Supreme Court has neither resolved a Fourth Amendment arrest excessive force case

in the years since the IGA’s passage, nor has it approved

45a

a single Bivens-type lawsuit since Carlson v. Green, 446

U.S. 14 (1980). Rather, the Court has repeatedly made

it clear that it is up to Congress, not the courts, to determine whether to create mechanisms and remedies for

alleged constitutional violations by federal officers. The

judicially created Bivens Fourth Amendment excessive

force cause of action and damages remedy is not a dead

letter as to cases which have no meaningful differences

with Bivens, but only as to those cases. The majority

pays short shrift to the Article III concerns articulated

by the Supreme Court that it is properly the function of

Congress, not the federal courts, to authorize such

causes of action. 10 Goldey v. Fields, 606 U.S. 942, 945

(2025) (per curiam), stated “[f]or the past 45 years, this

Court has consistently declined to extend Bivens to new

contexts,” thus discrediting the majority’s reasoning

that the Court has somehow given new life to Bivens in

the face of the IGA.

In my view, the majority’s holding is not only directly

contrary to many Supreme Court holdings, but it also

exacerbates the existing splits among the circuits and

introduces a new split. 11 Under the Court’s latest guidance, the issue before us is whether this case arises even

slightly in a new context. See id. at 944-45. The differences here are more than slight, including both that

“[T]he question whether a given remedy is adequate is a legislative determination that must be left to Congress, not the federal

courts. . . . That is true even if a court independently concludes that

the Government’s procedures are ‘not as effective as an individual

damages remedy.’ ” Egbert v. Boule, 596 U.S. 482, 498 (2022) (quoting Bush v. Lucas, 462 U.S. 367, 372 (1983)).

The Supreme Court may wish to address these circuit splits, reflecting the need for additional guidance to lower court judges, who

in good faith have reached different outcomes.

46a

Congress has chosen to create the IGA administrative

remedy and that there are other meaningful differences

with Bivens. Arias’ arrest for drug dealing was made

pursuant to a warrant and thus on probable cause, and

the assertion of excessive force arose from the officers’

attempt to enforce the warrant in a highly public place,

a mall parking lot where there was a significant risk to

the public. Arias’ claim is factually different and in a

different context than the excessive force claim made

years ago in Bivens.

There are several steps in the test which binds us for

whether this claim for damages survives. See Egbert,

596 U.S. at 492-93. These steps start with whether the

claim presents “ ‘a new Bivens context’—i.e., is it ‘meaningful[ly]’ different” from Bivens. Id. at 492 (alteration in

original) (quoting Ziglar v. Abbasi, 582 U.S. 120, 139

(2017)); see also Hernandez v. Mesa, 589 U.S. 93, 102 (2020).

The Supreme Court has identified a non-exhaustive list

of what are “meaningful” differences and has included

“special factors” on that list:

Without endeavoring to create an exhaustive list of

differences that are meaningful enough to make a

given context a new one, some examples might prove

instructive. A case might differ in a meaningful way

because of the rank of the officers involved; the constitutional right at issue; the generality or specificity

of the official action; the extent of judicial guidance

as to how an officer should respond to the problem

or emergency to be confronted; the statutory or

other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the

47a

presence of potential special factors that previous

Bivens cases did not consider.

Abbasi, 582 U.S. at 139-140 (emphasis added). “Second,

if a claim arises in a new context, a Bivens remedy is

unavailable if there are ‘special factors’ indicating that

the Judiciary is at least arguably less equipped than

Congress to ‘weigh the costs and benefits of allowing a

damages action to proceed.’ ” Egbert, 596 U.S. at 492

(quoting Abbasi, 582 U.S. at 136). The Court has stressed

that “[i]f there is even a single ‘reason to pause before

applying Bivens in a new context,’ a court may not recognize a Bivens remedy.” Id. (quoting Hernandez, 589 U.S.

at 102).

The Egbert Court further held that “[w]hile our cases

describe two steps, those steps often resolve to a single

question: whether there is any reason to think that Congress might be better equipped to create a damages

remedy.” Id. Applying Egbert’s ruling that the two

questions often resolve to a single question, Goldey decided the two steps simultaneously, demonstrating it

was proper to do so. See 606 U.S. at 944-45. By contrast

the majority holds it is error for a court not to take the

first step first, and if the first step is not satisfied, then

the case must be remanded to the district court, which

cannot consider the second step before then. That itself

is error. In this case, if not necessarily in all cases, the

two steps resolve into one.

The Court has specifically held that even “small” differences suffice to create a “new context,” and that “the

new-context inquiry is easily satisfied.” Abbasi, 582 U.S.

at 149. Hernandez explained that “[a] claim may arise in

a new context even if it is based on the same constitutional provision as a claim in a case in which a damages

48a

[claim] was previously recognized.” 589 U.S. at 103.

And in Egbert, the Court held that while the facts at issue there “involve[d] similar allegations of excessive

force and thus arguably present[ed] ‘almost parallel circumstances’ [to Bivens] . . . these superficial similarities

[we]re not enough to support the judicial creation of a

cause of action.” 596 U.S. at 495 (quoting Abbasi, 582 U.S.

at 139).

In the decades since Bivens was decided, the Court

“ha[s] come ‘to appreciate more fully the tension between’ judicially created causes of action and ‘the Constitution’s separation of legislative and judicial power,’ ”

and that unless a court exhibits the “utmost deference

to Congress’s preeminent authority in [creating a cause

of action], it ‘arrogat[e][s] legislative power.’ ” Egbert,

596 U.S. at 491-92 (second alteration in original) (quoting Hernandez, 589 U.S. at 100). The Court has further

emphasized that “it is a significant step under separation-of-powers principles for a court to determine that it

has the authority, under the judicial power, to create

and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation,” and “[i]n most instances, . . . the Legislature is in

the better position to consider if ‘the public interest

would be served’ by imposing a ‘new substantive legal

liability.’ ” Abbasi, 582 U.S. at 133, 136 (quoting

Schweiker v. Chilicky, 487 U.S. 412, 426-27 (1988)). Even

seemingly small variations from Bivens are “meaningful”

precisely because they inappropriately encroach on legislative power.

Egbert makes it even more clear that the IGA creates

exactly such a new context:

49a

[A] court may not fashion a Bivens remedy if Congress already has provided, or has authorized the

Executive to provide, “an alternative remedial structure.” If there are alternative remedial structures in

place, “that alone,” like any special factor, is reason

enough to “limit the power of the Judiciary to infer a

new Bivens cause of action.”

596 U.S. at 493 (citations omitted) (quoting Abbasi, 582

U.S. at 137). Egbert expressly held that an alternative

remedial structure “alone” bars a Bivens remedy. Id.

(quoting Abbasi, 582 U.S. at 137). The Supreme Court

has repeatedly held that alternative remedies can create

a “situation altogether different from Bivens.” Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 73 (2001); see also

Bush, 462 U.S. at 377-78.

The majority attempts, wrongly, to dismiss Goldey,

but Goldey also held that no Bivens action was present

because “ ‘an alternative remedial structure’ already exists,” and that no Bivens cause of action exists when

“Congress has actively legislated in the area . . . but has not

enacted a statutory cause of action for money damages.”

606 U.S. at 944. Goldey held it was error to recognize a

Bivens claim because it “could have negative systemic

consequences for [federal] officials.” Id. That is true

here.

The majority is incorrect in reading Abbasi as supporting its position that the existence of a congressionally created alternative remedy does not necessarily

create a new context. Indeed, to the extent that Abbasi

addressed the role of administrative remedies, it noted

that the “case also ha[d] certain features that were not

considered in the Court’s previous Bivens cases and that

might discourage a court from authorizing a Bivens

50a

remedy. As noted above, the existence of alternative

remedies usually precludes a court from authorizing a

Bivens action.” Abbasi, 582 U.S. at 148; see also Administrative Remedy Program, 44 Fed. Reg. 62250 (Oct. 29,

1979) (to be codified at 28 C.F.R. § 542).

The Bivens Court had no occasion to consider the

IGA,12 as Bivens was decided in 1971, prior to the enactment of the IGA. Congress created the Inspector General Act of 1978, 5 U.S.C. ch. 4 (amended in 1988 to apply

to the Department of Justice, Inspector General Act

Amendments of 1988, Pub. L. No. 100-504, 102 Stat. 2515

(1988)), and the Executive established the Office of Professional Responsibility, 28 C.F.R. § 0.29c(c). These

structures create an administrative complaint process

which provides for formal investigation into allegations

of DEA agent misconduct, with potential consequences

including disciplinary action and criminal prosecution.

That congressionally created alternative structure alone

should result in entry of judgment for the defendants on

these claims.13 Congress created an alternative struc12

The majority’s reasoning that Congress demonstrated no intent

to abrogate Bivens with the creation of the administrative remedies

at issue asks the wrong question, as the Supreme Court makes clear.

It is also inconsistent with this circuit’s prior holding that Congress

need not have explicitly identified the remedial structure at issue as

intended to supplant Bivens. In González v. Vélez, we held that the

issue is “whether there exists an alternative process that Congress

reasonably may have viewed as an equally effective surrogate for an

action brought directly under the Constitution.” 864 F.3d 45, 53 (1st

Cir. 2017) (emphasis added).

It is true that Hernandez found that the Federal Tort Claims Act

(FTCA) is not an alternative remedy that abrogates Bivens. 589

U.S. at 111 n.9. But Hernandez, which was decided before Egbert,

says nothing at all about the IGA and thus does not support the majority’s argument.

51a

ture that “vindicate[s] the Constitution by allowing

some redress for injuries.” Abbasi, 582 U.S. at 148.

Courts may not substitute for the congressionally created procedure and remedy a judicially created Bivens

cause of action. While Congress chose in the IGA not to

provide the identical procedures and remedies as in

Bivens, Egbert and its progeny make clear that is a

choice for Congress to make. 14

The majority seeks to minimize the significance of

the IGA’s remedial scheme by repeatedly asserting a

straw man: that the Supreme Court has not overruled

Bivens itself in the years since the IGA’s passage. But

neither has the Supreme Court found a single case in

which it has continued a Bivens remedy since Carlson, a

case from the “heady days in which th[e] Court assumed

common-law powers to create causes of action.” Egbert,

596 U.S. at 491 (quoting Malesko, 534 U.S. at 75 (Scalia,

J., concurring)). The majority thus attempts to read out

of Egbert and its progeny the Court’s main message:

that lower courts should not in any way use Bivens to

justify judicially created causes of action in cases like

this. The “functional test” adopted by the majority is

itself doubtful and neither congruent nor consistent with

the Supreme Court’s tests. And even if a functional test

The fact that an alternative remedial structure does not provide

for money damages does not matter. In Egbert, the Supreme Court

rejected arguments that the alternative remedial structure at issue

was inadequate because the defendant was not entitled to participate

and had no right to judicial review, noting that “we have never held

that a Bivens alternative must afford rights to participation or appeal.” Egbert, 596 U.S. at 497-98. Abbasi likewise held that alternative remedies barred a Bivens remedy without any discussion of

whether they provided for damages. Abbasi, 582 U.S. at 148.

52a

were the correct test, this case would fail it, as it would

“alter the policy balance.”

The majority’s attempt to say that the existence of an

alternative remedial structure qualifies as a “special factor” for purposes of the new-context analysis but does

not amount to a “meaningful” difference is an outlier

amongst our sister circuits, is also wrong, and creates a

circuit split. The Second, Third, Tenth, and Eleventh

Circuits have all held that alternative remedial structures create a “new context” or, more generally, categorically bar Bivens-type relief. See, e.g., Johnson v.

Terry, 119 F.4th 840, 858 (11th Cir. 2024) (“[T]he context of these claims is different from the context of the

claim in Carlson because there the Court did not consider whether there were alternative remedie . . . .”);

Logsdon v. U.S. Marshal Serv., 91 F.4th 1352, 1359 (10th

Cir. 2024) (identifying the existence of an alternative

remedial structure as an “independent ground for not

recognizing a Bivens action” (emphasis added)); Kalu v.

Spaulding, 113 F.4th 311, 327-28 (3d Cir. 2024) (identifying the existence of an alternative remedial structure

as a factor creating a new context); Lewis v. Bartosh,

No. 22-3060, 2023 WL 8613873, at *1 (2d Cir. Dec. 13, 2023)

(holding that “ ‘[i]f a claim arises in a new context’—such

as if it involves ‘a new category of defendants’—or if

there is an ‘alternative remedial structure,’ a Bivens

remedy is generally ‘unavailable’ ” (quoting Egbert, 596

U.S. at 492-93)); see also Silva v. United States, 45 F.4th

1134, 1141 (10th Cir. 2022) (holding that under Egbert,

Bivens-type claims do not survive when an alternative

remedial structure exists); Noe v. U.S. Gov’t, No. 231025, 2023 WL 8868491, at *3 (10th Cir. Dec. 22, 2023)

(holding that Bivens-type claim did not survive because

of existence of alternative remedial structure even if

53a

facts were otherwise identical). 15 The majority breaks

with all of these circuits and adopts a holding that is sui

generis.16

Arias’ case is also “meaningfully different” from Bivens

in addition to the IGA because there are numerous factual and legal claim differences. First, unlike Bivens,

Arias was arrested pursuant to a warrant. See Bivens

v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 389 (1971). There was a judicial

determination of probable cause 17 that Arias had committed crimes. There was no such determination that

Bivens had committed a crime, nonetheless officers entered his home and tried to arrest him.

Further, unlike Bivens who was arrested in his home,

id., Arias was arrested in his car in a shopping mall parking lot. These facts present meaningful differences in

an excessive force claim, which considers “whether the

The majority tries to discount the Tenth Circuit’s decision in

Noe. While the Tenth Circuit’s opinion in Noe was unpublished, that

court reached substantially the same conclusion in the published

Logsdon opinion, which held that “the availability of alternative remedies” there was an “independent ground for not recognizing a

Bivens action.” Logsdon, 91 F.4th at 1359.

The Ninth Circuit’s decision in Watanabe v. Derr, 115 F.4th 1034

(9th Cir. 2024), reh’g denied en banc, 139 F.4th 1056 (2025), does not

support the majority as it was not a Fourth Amendment excessive

force case, provides almost no reasoning, and the government did

not, apparently, present the special factors argument it has presented here.

In the months before Arias’ arrest, “an undercover Drug Enforcement Administrative operative[] made several controlled purchases of fentanyl-laced heroin from” Arias. Order on Defendants’

Renewed Motion for Summary Judgment, Arias v. U.S., No. 17-cv516-SM, ECF No. 56 at 3 (Jan. 19, 2021).

54a

suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Graham

v. Connor, 490 U.S. 386, 396 (1989). Both in effecting the

arrest and in preventing any attempts by Arias to speed

away to avoid arrest, the law enforcement officers had to

account for the real dangers which were posed to the

women, children, and men in the lot of the shopping mall.

Indeed, in circumstances where the suspect may pose a

threat to the arresting officers or others, or may flee,

the Supreme Court has held that officers may reasonably use additional force to effectuate a seizure. See

Scott v. Harris, 550 U.S. 372, 384-86 (2007); see also Bannon v. Godin, 99 F.4th 63, 79-83 (1st Cir. 2024) (reasonableness of force must be assessed in light of threat to

officer and members of the public and so lethal force was

reasonable), cert. denied, 145 S. Ct. 1048 (2025), reh’g

denied, 145 S. Ct. 1347 (2025).

More than that, public parking lots and people’s homes

are different for Fourth Amendment purposes. Fourth

Amendment interests are strongest in the home. See,

e.g., Florida v. Jardines, 569 U.S. 1, 6 (2013) (noting that

“when it comes to the Fourth Amendment, the home is

first among equals” and that “the distinction between

the home and the open fields is ‘as old as the common

law’ ” for purposes of determining whether an unlawful

search has taken place (quoting Hester v. United States,

265 U.S. 57, 59 (1924))); United States v. Karo, 468 U.S.

705, 714 (1984)(“[o]ur cases have not deviated from th[e]

basic Fourth Amendment principle” that “private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one

that society is prepared to recognize as justifiable”);

55a

Payton v. New York, 445 U.S. 573, 601 (1980)(“To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity

of the home. This is simply too substantial an invasion

to allow without a warrant . . . .” (citation omitted)).

The majority reasons that excess force is the same no

matter these differences and so the differences cannot

be meaningful. I disagree, but more importantly, Congress

could easily find these differences meaningful. Congress

could readily conclude arrests without warrant in the

sanctity of the home are greater invasions of Fourth

Amendment protections than attempts by law enforcement to effectuate arrest warrants in busy public mall

parking lots. Each of these clear differences, whether

taken alone or collectively, creates a “new context.”18

The majority also magnifies existing circuit splits regarding other differences from Bivens. The Fourth,

Fifth, and Sixth circuits have held that the existence of

a warrant amounts to a meaningful difference from

Bivens in Fourth Amendment claims. See Annappareddy

v. Pascale, 996 F.3d 120, 135 (4th Cir. 2021)(“What Bivens

Arias and the majority rely on Hicks v. Ferreyra, 64 F.4th 156

(4th Cir. 2023) and Snowden v. Henning, 72 F.4th 237 (7th Cir. 2023),

as demonstrating the viability of Bivens-type claims. Yet these outof-circuit cases are distinguishable on the very characteristics that

place this case in a “new context”: Hicks did not involve a warrant

or an alternative remedial structure, see Hicks, 64 F.4th at 167, and

the Snowden court did not involve a remedial structure other than

the FTCA (and the Snowden court reasoned that the FTCA is not

an alternative to Bivens-type actions), Snowden, 72 F.4th at 246 n.4.

The majority also cites DeMayo v. Nugent, 517 F.3d 11 (1st Cir.

2008), but it too has little relevance, as it was decided well before

Egbert and the line of Supreme Court cases that are controlling

here.

56a

involved was the Fourth Amendment right to be free of

unreasonable warrantless searches and seizures; this

case, by contrast, involves searches and a seizure conducted with a warrant.”); Cantú v. Moody, 933 F.3d 414,

423 (5th Cir. 2019); Cain v. Rinehart, No. 22-1893, 2023

WL 6439438, at *3 (6th Cir. July 25, 2023). The majority

disagrees. But the Cantú decision’s own language shows

the Fifth Circuit stated exactly that: One of the “[m]any

measures” on which “Cantú’s claims [we]re meaningfully different from the Fourth Amendment claim at issue in Bivens” was that the officers had not “entered his

home without a warrant.” Cantú, 933 F.3d at 423 (emphasis added). Since a new context arises whenever a

claim is “ ‘meaningful[ly]’ different” from Bivens, the existence of a warrant produces a new context. Egbert,

596 U.S. at 492 (alteration in original) (emphasis

added)(quoting Abassi, 582 U.S. at 139). The Seventh

and Tenth circuits have held the opposite, with the latter

court acknowledging this exact circuit split. See Snowden, 72 F.4th at 247; Logsdon, 91 F.4th at 1357

(“agree[ing]” with Snowden while recognizing “there is

substantial authority to the contrary” as “[s]everal

other circuits have said that a new Bivens context exists

when federal officials execute a valid warrant”). By joining the Seventh and Tenth circuits rather than the majority position, this court exacerbates this existing and

recognized split. And the majority is in conflict with the

holding of the Tenth Circuit in Rowland v. Matevousian

that even “small” differences can create a new context

for Bivens-type claims. 121 F.4th 1237, 1243-44 (10th

Cir. 2024).

Additionally, the Fifth and Ninth circuits have held

that challenged conduct occurring outside the home

amounts to a meaningful difference from Bivens, see

57a

Byrd v. Lamb, 990 F.3d 879, 882 (5th Cir. 2021); Mejia

v. Miller, 61 F.4th 663, 668 (9th Cir. 2023)19, while the

Seventh and Tenth circuits have held the opposite, see

Snowden, 72 F.4th at 247; Logsdon, 91 F.4th at 1357.

The majority also departs from this circuit’s decision

in González, which held that a different remedial structure is a meaningful special factor in denying Bivens relief. See 864 F.3d at 53 (“ The existence of such alternative processes is a special factor . . . .”).20 In QuinonesPimental, this Court likewise identified the existence of

a warrant and the public arrest as aspects of meaningful

difference from Bivens. See 85 F.4th at 71-72 (“[T]ake

first the law enforcement actions at issue here, which

differ entirely from those at issue in Bivens. . . . [N]o

one’s home nor their person (naked or otherwise) was

searched without a warrant.”). And in Waltermeyer v.

Hazlewood, 136 F.4th 361 (1st Cir. 2025), this court held

that “factual and legal differences” between the plaintiff ’s claims and Carlson created a new context. Id. at

365.

I respectfully dissent.

The majority contends that Mejia is outside this split, as the challenged conduct in the case took place not merely outside the home,

but on federal land. That decision’s emphasis on the out-of-home

location of the conduct belies this reading. See, e.g., Mejia, 61 F.4th

at 668 (“More importantly, unlike Bivens, none of the events in question occurred in or near [the plaintiff ’s] home.”).

Quinones-Pimental, 85 F.4th 63, does not address the question of

whether an alternative remedial scheme would have been a special

factor sufficient to create a “new context” under step one; it had no

need to do so, since other factual differences from Bivens were sufficient to establish a new context. Id. at 70; see also Hornof v. United

States, 107 F.4th 46, 65-66 (1st Cir. 2024) (same).

58a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Civil No. 17-cv-516-LM

Opinion No. 2023 DNH 076 P

ROBERT ARIAS

NOAH A. HERZON, ET AL.

Filed: June 27, 2023

ORDER

Plaintiff Robert Arias alleges that several Drug Enforcement Administration (“DEA”) agents used excessive force on him (or failed to intervene against other

agents’ use of excessive force) when they arrested him

in September 2016. Arias’s claims arise under the Fourth

Amendment. He seeks damages from the defendants

under Bivens v. Six Unknown Named Agents of Federal

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

Defendants move for summary judgment (doc. no. 66).

They rely on recent Supreme Court precedent, Egbert

v. Boule, — U.S. —, 142 S. Ct. 1793 (2022), that strictly

limits the applicability of Bivens outside of its original

“context.” Defendants contend that Arias’s excessive

force and failure-to-intervene claims seek to apply Bivens

to a new context. Arias disagrees and contends that both

59a

claims survive summary judgment because they “fall

within the ambit of Bivens.”

For the reasons that follow, the court agrees with defendants and grants their motion for summary judgment.

STANDARD OF REVIEW

Summary judgment is proper only if the moving

party can demonstrate that there is no evidence in the

record to support a judgment for the nonmoving party.

Borges v. Serrano-Isern, 605 F.3d 1, 5, 8 (1st Cir. 2010);

see also Fed. R. Civ. P. 56(a). In evaluating a motion for

summary judgment, the courts must view the evidence

in the light most favorable to the nonmoving party, must

draw all reasonable inferences in that party’s favor, and

may neither make credibility determinations nor weigh

the evidence. Harris v. Scarcelli, 835 F.3d 24, 29 (1st

Cir. 2016); Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir.

2014).

BACKGROUND

The following facts are drawn from the court’s

(McAuliffe, J.) first summary judgment order (doc. no.

56). They are uncontested for purposes of the issue before

the court.

Law enforcement officers investigating drug trafficking made several controlled purchases of fentanyllaced heroin from Arias. On September 8, 2016, the 6

named defendants 1 and 12 other federal law enforcement officers arrested Arias. Arias’s arrest was authorized by an arrest warrant. All of the defendants are either

The court previously granted summary judgment in favor of two

of the six defendants, so only four officers remain in this case. See

doc. no. 56

60a

DEA agents or local police officers assigned to a DEA

task force.

The arrest occurred at the parking lot of the Rockingham Park Mall in Salem, New Hampshire. Arias arrived at the mall in a car driven by his pregnant wife,

Carmen Jose. Arias sat in the front passenger seat.

Carmen Jose pulled the car into a parking spot. Several

police cars pulled in, blocking Arias’s car into the spot.

Seeing that she had nowhere to move the car, Carmen

Jose put the car into park. The officers, many in plain

clothes, approached the car with their weapons drawn.

The officers tried to remove Arias from the car, but

he was wearing a seatbelt. An officer cut Arias’s seatbelt

and dragged him from the car, took him to the ground,

and handcuffed him. Both Arias and Carmen Jose complied with all of the officers’ commands. The officers

stated in affidavits that the arrest was quick and nonviolent. They say that Arias suffered no injuries of significance.

By contrast, Arias stated in an affidavit that the officers dragged him from the car by his neck. Once the

officers had Arias on the ground, they handcuffed him,

stepped on his legs, and hit his head against the ground.

Arias involuntarily urinated in his pants because of the

fear the officers caused him. At some point, Arias lost

consciousness. Carmen Jose recounted a similar version

of events in her affidavit.

Arias brought this suit in 2017. He alleges that the

arresting officers used excessive force against him in violation of the Fourth Amendment. He alleges that the

officers who watched his violent arrest but failed to protect him also violated the Fourth Amendment.

61a

Arias seeks money damages for the alleged physical

and emotional injuries that he suffered. In January 2021,

this court (McAuliffe, J.) denied defendants’ motion for

summary judgment on the ground of qualified immunity.

Defendants filed this second motion for summary judgment after the Supreme Court’s decision in Egbert v.

Boule.

DISCUSSION

Relying on Egbert, defendants argue that the court

must dismiss Arias’s claims for excessive force and failure to intervene in the use of excessive force because this

case applies Bivens in a “new context.” Arias responds that

the circumstances of his claims are, in all material respects, like those of Bivens. After reviewing the applicable law, the court addresses Arias’s excessive-force

claims first and his failure-to-intervene claims second.

The Fourth Amendment prohibits federal officers

from using excessive force on arrestees. E.g., MirandaRivera v. Toledo-Davila, 813 F.3d 64, 70-71 (1st Cir.

2016). While 42 U.S.C. § 1983 permits plaintiffs to bring

damages suits against state officials for constitutional

violations, there is no analogous statutory cause of action for such suits against federal officials. See Ziglar v.

Abbasi, 582 U.S. 120, 130-31 (2017). Notwithstanding

that absence of statutory authorization, the Supreme

Court held in Bivens that an arrestee could bring a suit

under the Fourth Amendment for damages from the

federal officers who searched his home and arrested

him, allegedly using excessive force in the process. 403

U.S. at 397. Subsequently, the Supreme Court recognized a similar “implied cause of action” under the constitution in two other suits seeking damages for alleged

constitutional violations. First, in Davis v. Passman, 442

62a

U.S 228 (1979), the Court held that a former congressional staffer could bring a suit for damages against a

United States Congressman for sex discrimination in violation of the Fifth Amendment. Then, in Carlson v.

Green, 446 U.S. 14 (1980), the Court held that a deceased

federal inmate’s estate could bring a suit for damages

against prison officials for their failure to provide the inmate adequate medical treatment in violation of the

Eighth Amendment.

But since deciding Carlson, the Supreme Court has

“consistently refused” to extend Bivens despite numerous opportunities to do so. See Abbasi, 582 U.S. at 135;

see also Drewniak v. U.S. CBP, 554 F. Supp. 3d 348, 355

(D.N.H. 2021) (collecting Supreme Court cases). More

recently, the Supreme Court “has scaled back Bivens

significantly, delivering a trilogy of opinions expressing

opposition toward any expansion of Bivens actions.” See

Bulger v. Hurwitz, 62 F.4th 127, 136 (4th Cir. 2023) (citing Egbert, 142 S. Ct. at 1803, Hernandez v. Mesa, 589

U.S. —, 140 S. Ct. 735, 741 (2020), and Abbasi, 582 U.S.

at 135). This approach derives from the Court’s separation-of-powers concerns, as the Supreme Court has expressed its view that Congress—not the courts—should

determine whether a private right of action for damages

should exist for constitutional violations. See Abbasi,

582 U.S. at 133-34 (“[I]t is a significant step under separation-of-powers principles for a court to determine

that it has the authority, under the judicial power, to

create and enforce a cause of action for damages against

federal officials in order to remedy a constitutional violation.”).

At the same time, the Supreme Court has not overruled Bivens. Egbert, 142 S. Ct. at 1803 (“[R]ather than

63a

dispense with Bivens altogether, we have emphasized

that recognizing a cause of action under Bivens is ‘a disfavored judicial activity.’ ”). Instead, the Supreme Court

has imposed “a highly restrictive two-step analysis,”

which limits when claims for damages against federal

officers may proceed. Bulger, 62 F.4th at 136-37.

Under the first step, the court must determine

whether the claim seeks to apply Bivens in a “new context” or involves a “new category of defendant.” Id. at

137 (quoting Hernandez, 140 S. Ct. at 743). A case presents “a new Bivens context” if it is “meaningfully” different from all three cases in which the Supreme Court

has authorized damages claims against federal officers

for constitutional violations. Egbert, 142 S. Ct. at 1803;

Bulger, 62 F.4th at 137. Meaningful differences may include:

the rank of the officers involved; the constitutional

right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how

an officer should respond to the problem or emergency to be confronted; the statutory or other legal

mandate under which the officer was operating; the

risk of disruptive intrusion by the Judiciary into the

function of other branches; or the presence of potential special factors that previous Bivens cases did not

consider.

Abbasi, 582 U.S. at 140 (emphasis added). Thus, a meaningful difference from Bivens exists where a claim presents “special factors” which the Supreme Court did not

consider in Bivens. Id. In Egbert, the Supreme Court

made clear that an alternative remedial structure, created by either the Executive or by Congress, is one such

“special factor” that courts must consider in making this

64a

determination. See 142 S. Ct. at 1806-07. This followed

from the Supreme Court’s earlier holdings that legislatively created comprehensive alternative remedies can

make the “situation altogether different from Bivens.”

See Correctional Servs. Corp. v. Malesko, 534 U.S. 61,

73 (2001); Bush v. Lucas, 462 U.S. 367, 378, 385-86

(1983); see also Gonzalez v. Velez, 864 F.3d 45, 52-54 (1st

Cir. 2017) (holding, in the alternative, that the existence

of an “alternative process that Congress may have

viewed as an equally effective surrogate for an action

brought directly under the Constitution” forecloses relief under Bivens).

The court proceeds to the second step in the analysis

if it determines that a meaningful difference exists. At

the second step, the court must dismiss the claim if there

is “any rational reason (even one)” to think that either

Congress or the Executive branch “is better suited” to

determine whether a cause of action exists than the

courts. Egbert, 142 S. Ct. at 1803. In Egbert, the Supreme Court acknowledged that the two-step analysis

“often resolve[s] to a single question: whether there is

any reason to think that Congress might be better

equipped to create a damages remedy.” Id. And Egbert

further clarified that the presence of an alternative remedial structure is a “special factor” counseling in favor

of dismissal. See id. at 1806-07.

Thus, after Egbert, once a court determines that

there is an alternative remedial structure that Bivens

did not consider, the two-step framework collapses into

one question: Is there any reason to think that the

Judiciary is better equipped than Congress or the Executive branches to augment that remedy? Egbert, 142

S. Ct. at 1805. The answer requires deference to the

65a

other branches and will likely always be answered in the

negative. As explained in Egbert: “[T]he question of

whether a given remedy is adequate is a legislative determination that must be left to Congress, not the federal courts. So long as Congress or the Executive has

created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot

second-guess that calibration by superimposing a Bivens

remedy.” Id. at 1807.

The parties agree that, of the three cases in which the

Supreme Court has authorized damages causes of action

against federal officers (Bivens, Carlson, and Davis),

only Bivens itself is relevant here. In Bivens, officers

from the Federal Bureau of Narcotics 2 entered Bivens’s

apartment and arrested him for alleged narcotics

crimes. 403 U.S. at 389. Bivens alleged that the agents

handcuffed him “in front of his wife and children, and

threatened to arrest the entire family.” Id. The officers

searched the apartment, and they took Bivens to a federal courthouse, where he was interrogated, booked,

and “subjected to a visual strip search.” Id. Bivens later

brought suit against the arresting officers. Id. He alThe Supreme Court in Abbasi, 582 U.S. at 140, described Bivens

as involving “a claim against FBI agents,” although Bivens involved

agents from the Federal Bureau of Narcotics. Bivens, 403 U.S. at

389 (“Petitioner’s complaint alleged that . . . agents of the Federal

Bureau of Narcotics acting under claim of federal authority . . . .”);

Bivens, 276 F. Supp. 12, 13 (E.D.N.Y. 1967) (quoting Bivens’s complaint as bringing claims against “six (6) Agents of the U.S. Narcotic

Bureau”); Bivens, 456 F.2d 1339, 1341 (2d Cir. 1972) (stating, on remand from Supreme Court, that “we must now decide the important

and highly controversial question whether the acts of these Federal

Bureau of Narcotics Agents are clothed with immunity . . . .”). It is

unclear why the Supreme Court in Abbasi described the defendants

in Bivens as FBI agents.

66a

leged that the officers arrested him and searched his

apartment without a warrant and without probable

cause. Id. Additionally and separately, he alleged that

the officers used unreasonable force when arresting him.

Id. The Supreme Court held that Bivens could seek money

damages against the officers for all those alleged violations of the Fourth Amendment, even though Congress

had not expressly created a damages remedy by statute.

Id. at 397 (“[W]e hold that petitioner is entitled to recovery money damages for any injuries he has suffered as

a result of the agents’ violation of the Amendment.”).

Despite its refusal to extend Bivens, the Court recognizes that Bivens is still good law. Abbasi, 582 U.S. at

134. In Abbasi, the Court explained that the “settled law

of Bivens in this common and recurrent sphere of law

enforcement, and the undoubted reliance upon it as a

fixed principle in the law, are powerful reasons to retain

it in that sphere.” Id.

Relying on Bivens, Arias brings two Fourth Amendment excessive force claims against the DEA agents

who arrested him. The first claim is brought against the

officers who inflicted the excessive force, and the second

is brought against the officers who failed to intervene to

stop the excessive force. Until Egbert, Arias’s first

Bivens claim may have survived. After Egbert, neither

of his claims is viable.

Excessive Force

Defendants argue that Arias’s excessive-force claims

are materially different from Bivens because (1) Arias

was arrested pursuant to warrant in a parking lot while

Bivens’s arrest occurred without a warrant in his home,

and (2) the DEA has, like Border Patrol, an alternative

67a

remedial structure, a factor which was not considered in

Bivens and was dispositive in Egbert. Defendants’ second

argument is persuasive.

Bivens and Arias’s claims share many of the same

background facts: an arrest made by federal narcotics

agents investigating a violation of federal drug laws that

would have been routine but for the alleged constitutional violations. Whether the officers had a warrant for

Arias’s arrest is not a meaningful difference from Bivens.

See Bueno Diaz v. Mercurio, 442 F. Supp. 3d 701, 708

(S.D.N.Y. 2020) (finding that plaintiff ’s arrest pursuant

to a warrant did not create a meaningful difference from

Bivens when plaintiff alleged excessive force claims). As

discussed, Bivens involved two allegedly unlawful actions: a warrantless search and seizure and an arrest

executed with excessive force, and it recognized the

availability of damages for both violations. See 403 U.S.

at 389 (“[H]is complaint asserted that the arrest and

search were effected without a warrant, and that

unreasonable force was employed in making the arrest

. . . .”). The arresting officers’ possession of a warrant

in this case is a difference from Bivens, but not one with

meaning. Likewise, the court does not find persuasive

defendants’ argument that this case is meaningfully different from Bivens because Bivens involved an arrest in

the plaintiff ’s home while this case involves an arrest in

a parking lot. These differences are illusory rather than

meaningful. See Abbasi, 582 U.S. at 149 (acknowledging

that some differences “will be so trivial that they will not

suffice to create a new Bivens context”). Furthermore, the

category of defendants is effectively the same here as in

Bivens. In 1973, the functions of the Federal Bureau of

Narcotics (the agency at issue in Bivens) were trans-

68a

ferred to the DEA—the agency defendants work for in

this case.3

Here, however, the defendants also point to the DEA’s

alternative remedial structures under the Inspector

General Act of 1978, 5 U.S.C. chapter 4, 4 and the Office

of Professional Responsibility, 28 C.F.R. § 0.29c(c).

These processes allow individuals like Arias to file misconduct reports against DEA agents, which may then be

investigated and remedied by the appropriate office.

Defendants contend that the Border Patrol’s similar administrative process was critical to the Supreme Court’s

holding in Egbert that Bivens did not extend to a claim

against a border patrol agent. The court agrees that the

existence of these alternative remedial structures is sufficient both to place Arias’s case in a new context and to

preclude expansion of Bivens to that new context.

In Abbasi, the Supreme Court stated that one reason

to find a new context is the “presence of potential special

factors that previous Bivens cases did not consider.” 582

U.S. at 140. Then, in Egbert, the Supreme Court made

clear that an alternative remedial structure is a “special

Specifically, in 1968, the Bureau of Narcotics (which had been

part of the Department of the Treasury) was abolished and its functions transferred to the newly established Bureau of Narcotics and

Dangerous Drugs, part of the Department of Justice. See Reorganization Plan No. 1 of 1968, 38 F.R. 15932, 1968-2 C.B. 907; United

States v. Feola, 420 U.S. 671, 684 n.18 (1975). Then, in 1973, the Bureau of Narcotics and Dangerous Drugs was abolished and its functions were transferred to the DEA. See Reorganization Plan No. 2

of 1973, 38 F.R. 15932, 87 Stat. 1091.

The Inspector General Act was initially codified in an appendix

to the U.S. code, 5 U.S.C.App. §§ 1 et seq. Effective December 2022,

Congress moved those provisions to 5 U.S.C. chapter 4. Pub. L. 117286, 136 Stat. 4196.

69a

factor” which courts must give heightened consideration. See 142 S. Ct. at 1806-07. In other words, the

court—at either the first or second step of the Abbasi

framework—cannot ignore the presence of special factors which were not considered in Bivens. McGee v. Bureau of Prisons, No. CV 23-00190 LEK-KJM, 2023 WL

3467116, at *5 (D. Haw. May 15, 2023) (holding that

BOP’s administrative remedial structure was not considered in Carlson and therefore presents a new context

for this Bivens claim).

The alternative remedial structure identified by the

government applies to alleged misconduct by DEA agents

and was created in 1978—several years after the Supreme

Court decided Bivens. Therefore, it is a “special factor”

which the Supreme Court did not consider in Bivens.

And the existence of a special factor like an alternative

remedial structure is sufficient to place a case in a new

context.5 See Abbasi, 582 U.S. at 140; Egbert, 142 S. Ct.

at 1803.

In light of Egbert, the court is not persuaded to apply

the approach to the two-step framework used in Aaron

v. City of Lowell, — F. Supp. 3d —, No. 20-cv-11604The court need not analyze all of the features of the DEA’s alternative remedial structure. In Egbert, the Supreme Court held that

so long as Congress or the Executive created an alternative remedial

process that it finds sufficient to secure an adequate level of deterrence, the courts cannot apply Bivens to federal agents covered by

that process. See 142 S. Ct. at 1806. Arias has supplied no reason to

distinguish the alternative remedial structures at issue here from

the process at issue in Egbert, which the Supreme Court found to be

sufficient to preclude application of Bivens. Additionally, because

these alternative remedial structures are sufficient to require dismissal, the court does not reach whether the Federal Tort Claims

Act, 28 U.S.C. § 2675, might also foreclose Arias’s Bivens claims.

70a

ADB, 2023 WL 2743337, at *16 (D. Mass. Mar. 31, 2023),

and Kennedy v. Massachusetts, No. 22-cv-11152, — F.

Supp. 3d —, —, 2022 WL 17343849, at *4 (D. Mass. Nov.

30, 2022). Both cases hold that a court need not consider

an alternative remedial structure unless it reaches the

second step of the Abbasi framework. However, Abbasi

states that courts must consider special factors which

the Supreme Court did not consider in Bivens. 582 U.S.

at 140. And even though the Court’s analysis in Egbert

was made in the second step of the framework, the Supreme Court observed that the two-step Abbasi analysis

“often resolve[s] to a single question: whether there is

any reason to think that Congress might be better

equipped to create a damages remedy.” 142 S. Ct. at

1803. Egbert stresses that the existence of a remedial

scheme is sufficient by itself to carry the day: “If there

are alternative remedial structures in place, ‘that alone’,

like any special factor, is reason enough to ‘limit the

power of the Judiciary to infer a new Bivens cause of

action.’ ” Id. at 1804; see also id. at 1806 (holding that

existence of “alternative remedies . . . independently

foreclose a Bivens action”). That is the case here: the

existence of the alternative remedial scheme is enough

to both place the case into a new context at the first step

and to prohibit expanding Bivens at the second step.

At bottom, this case is like Egbert: it presents with

facts virtually indistinguishable from Bivens. But the

two-step framework boils down to one question:

whether the presence of a special factor which was not

considered in Bivens precludes its application. The

court answers that question in the affirmative. The alternative remedial scheme authorized by the Inspector

General Act and implemented by the Executive branch

is a reason to believe that Congress is better positioned

71a

to create a damages remedy than the court. See Egbert,

142 S. Ct. at 1803, 1806-07. For that reason, Arias’s first

set of excessive force claims are dismissed.

II. Failure to Intervene

Defendants also move for summary judgment as to

Arias’s failure-to-intervene claims, arguing that Bivens

did not involve claims for failure to intervene in the use

of excessive force. Few courts have directly confronted

the question,6 and there is minimal authority expressly

recognizing a remedy under Bivens for failure to intervene in the use of excessive force. Accord Robinson v.

Sauls, 2019 WL 13270432, at *10-*11 (N.D. Ga. Mar. 13,

2019) (“Ms. Robinson has not provided any authority indicating that a Bivens remedy exists for failure to intervene. The Court has conducted its own search and similarly finds no such authority.”). Arias identifies one

case, Campbell v. City of Yonkers, which held that a failure-to-intervene claim does not state a separate constitutional violation but is instead an alternate theory of

liability for the alleged use of excessive force. 2020 WL

5548784, at *10 (S.D.N.Y. Sept. 16, 2020). On that basis,

Most opinions involving Fourth Amendment claims brought under Bivens address arguments that the allegations are insufficient

or are blocked by the difficult hurdle of qualified immunity. There

are many decisions that address failure-to-intervene claims brought

under Bivens, but none that the court can find which persuasively

explain (considering Abbasi, Hernandez, or Egbert) why such a claim

arises in the same context as that in Bivens. And, prior to Abbasi,

the First Circuit “construed Bivens claims with some generality.”

Ortega v. U.S. Customers & Border Protection, — F. Supp. 3d —,

2023 WL 2187896, at *5 n.2 (D. Mass. 2023) (noting that—considering Abbasi and Egbert—it is “highly doubtful” that the First Circuit’s pre-Abbasi decisions which apply Bivens in this way “remain[]

good law in all respects”).

72a

the court rejected an argument that the plaintiff ’s failure-to-intervene claims presented Bivens in a new context. Id.7

Regardless of whether a failure-to-intervene claim is

an alternative theory of liability or separate constitutional violation, Bivens did not involve any theory that

the defendant officers’ failure to intervene should subject them to bystander liability under Bivens. And, in light

of the Supreme Court’s recent Bivens jurisprudence, this

seems like a meaningful difference. “[E]ven a modest

extension is still an extension.” Abbasi, 582 U.S. at 147;

see also Hernandez, 140 S. Ct. at 743 (“A claim may arise

in a new context even if it is based on the same constitutional provision” as Bivens). Most importantly, however,

(and for the reasons discussed above), the existence of

an alternative remedial scheme is sufficient to place the

case in a new context and foreclose this Bivens claim.

For these reasons, Arias’s failure-to-intervene claims

apply Bivens to a new context and the existence of an

alternative remedial structure requires the same analysis that the court used to dismiss Arias’s first set of excessive-force claims. The court therefore grants defendants’ motion for summary judgment on Arias’s “failure

to intervene” excessive-force claims.

The other case cited by Arias on this topic, Damiani v. Duffy,

does not provide any analysis of this issue and is therefore unhelpful.

See 277 F. Supp. 3d 692, 706 (D. Del. 2017) (granting summary judgment in defendants’ favor on failure to intervene claims because the

plaintiff had not shown excessive force as opposed to analyzing

whether the case presented Bivens in a new context).

73a

CONCLUSION

Arias’s claims would extend Bivens to a new context

and special factors counsel against expanding Bivens to

that new context. Arias’s claims are therefore dismissed.

Defendants’ motion for summary judgment (doc. no. 66)

is granted. The clerk of court is directed to close the case.

SO ORDERED.

LANDYA MCCAFFERTY

Landya McCafferty

United States District Judge

June 27, 2023

cc: Counsel of Record

74a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 23-1618

ROBERT ARIAS, PLAINTIFF-APPELLANT

NOAH A. HERZON; JUAN INFANTE; TY KURCHARSKI;

CHRISTOPHER DAY; ADALBERTO GARCIA; MICHAEL

BERNARD, DEFENDANTS-APPELLEES

US GOVERNMENT; US DRUG ENFORCEMENT

ADMINISTRATION, DEFENDANTS

Entered: Feb. 24, 2026

ORDER OF COURT

Before BARRON, Chief Judge, LYNCH, THOMPSON,

GELPÍ, MONTECALVO, RIKELMAN, AFRAME,* and DUNLAP, Circuit Judges.

The petition for rehearing having been denied by the

panel of judges who decided the case, and the petition

for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not

having voted that the case be heard en banc, it is ordered

* Judge Aframe is recused and did not participate in the consideration of this matter.

75a

that the petition for rehearing and the petition for rehearing en banc be denied.

LYNCH, Circuit Judge , dissents from the denial of

panel rehearing.

By the Court:

Anastasia Dubrovsky, Clerk

cc:

William L. Chapman, Jeremy D. Eggleton, Melissa N.

Patterson, Jaynie Randall Lilley, Kasey Weiland

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.