Edwards v. Gizzi

22-654
Edwards v. Gizzi


                   United States Court of Appeals
                      For the Second Circuit

                               August Term 2022
                              Argued: June 13, 2023
                              Decided: July 12, 2024

                                    No. 22-654


                                CLINT EDWARDS,

                                Plaintiff-Appellant,

                                         v.

                   DREW GIZZI, ROBERT JOHNSEN, FRANK PENA,
                       JOHN DOES 1-10, WALTER COOK,
                            ANTHONY MERCURIO,

                              Defendants-Appellees. *


                   Appeal from the United States District Court
                     for the Southern District of New York
                           No. 20-cv-7371, Karas, Judge.



        *   The Clerk of Court is directed to amend the caption accordingly.

                                         1
Before:       PARKER, PARK, and ROBINSON, Circuit Judges.

      Appellant Clint Edwards brought claims seeking damages
from court-security officers and deputy U.S. Marshals for using
excessive force while restraining him in a courtroom.     The district
court dismissed his claims, concluding that Edwards has no cause of
action under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 

 (1971). The judgment of the district court is
AFFIRMED.

      Judge Park concurs in the judgment in a separate opinion.

      Judge Robinson concurs in the judgment in a separate opinion.

      Judge Parker dissents in a separate opinion.


                ATHUL K. ACHARYA, Public Accountability, Portland,
                OR, for Plaintiff-Appellant.

                LUCAS ISSACHAROFF, Assistant United States Attorney
                (Christopher Connolly, Assistant United States
                Attorney, on the brief), for Damian Williams, United
                States Attorney for the Southern District of New York,
                New York, NY, for Defendants-Appellees Drew Gizzi and
                Robert Johnsen.


PER CURIAM:

      Appellant Clint Edwards brought claims seeking damages
from court-security officers and deputy U.S. Marshals for using

                                  2
excessive force while restraining him in a courtroom.    The district
court dismissed his claims, concluding that Edwards has no cause of
action under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 

 (1971). The judgment of the district court is
affirmed.




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Edwards v. Gizzi, et al.


PARK, Circuit Judge, concurring in the judgment:

        This case involves a straightforward application of a line of
Supreme Court precedent unbroken over forty years.         The district
court correctly concluded that Edwards has no cause of action under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 

 (1971).           That is because the context here—an Eighth
Amendment claim for excessive force against officers in the United
States Marshals Service and court-security personnel—“is different in
a meaningful way” from the three Bivens claims the Supreme Court
has recognized.            Ziglar v. Abbasi, 

 (2017).
Moreover, Congress has provided in the Federal Tort Claims Act
(“FTCA”), 

(b), 2671-2680, just the sort of alternative
remedial scheme that counsels against judicial expansion of Bivens.
We should follow Supreme Court precedent and avoid engaging in
legislative functions.

                              I.   BACKGROUND

        In July 2018, Edwards pleaded guilty to coercion and
enticement of a minor to engage in illegal sexual activity in violation
of 

(b). During his sentencing, he began yelling at the
judge and the Assistant United States Attorney (“AUSA”). Edwards
took an aggressive stance, raising his hands and slightly cocking his
arms back, and lunged towards the AUSA’s desk. A Deputy United
States Marshal, a District Security Officer, a private prison guard, and
three Court Security Officers restrained him, and broke his arm in the
process. Edwards filed a Bivens suit against them all.

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Edwards v. Gizzi, et al.


        Three defendants moved to dismiss Edwards’s complaint.
The district court construed the complaint as alleging two Bivens
claims—one for excessive force under the Fifth or Eighth Amendment
and one for deliberate indifference under the Eighth Amendment.
The district court granted the motion to dismiss. Edwards v. Gizzi,
No. 20-CV-7371 (KMK), 

, at *2, *10 (S.D.N.Y. Feb. 2,
2022). It concluded that both claims presented new Bivens contexts
and that the existence of a statutory remedial scheme under the FTCA
presented a special factor counseling hesitation before extending the
Bivens implied-damages remedy.           

.   The court gave
Edwards thirty days to explain why his claims against the remaining
defendants should not be dismissed. 

.

        Instead, Edwards asked the district court to convert the partial
dismissal into an appealable final judgment. The court did so, and
Edwards appealed.

                           II.   DISCUSSION

        Edwards argues that his Eighth Amendment excessive-force
claim does not implicate a new Bivens context and that no special
factors counsel hesitation in extending a remedy.

        We review the grant of a motion to dismiss de novo. Meyer v.
Seidel, 

 (2d Cir. 2023).




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Edwards v. Gizzi, et al.


A.      The Bivens Framework

        More than fifty years ago, the Supreme Court in Bivens
recognized an implied cause of action for money damages under the
Fourth Amendment when the plaintiff alleged that federal narcotics
officers had conducted an unreasonable warrantless arrest and
search. See 

. In the following decade, the Court
crafted two other damages actions: first, a Fifth Amendment claim
for sex discrimination in a suit brought by a former congressional
staffer against a congressman, see Davis v. Passman, 

(1979); and second, an Eighth Amendment claim for failure to provide
adequate medical treatment in a suit brought by a federal prisoner
against prison officials, see Carlson v. Green, 

 (1980). These
three cases “represent the only instances in which the Court has
approved of an implied damages remedy under the Constitution
itself.” Ziglar, 

.

        Bivens, Davis, and Carlson were decided during an “ancien
regime,” when the Supreme Court “assumed it to be a proper judicial
function to provide such remedies as are necessary to make effective
a statute’s purpose” or to “grant the necessary relief when federally
protected rights have been invaded.”           

 (internal
quotation marks omitted). But the Court has since made clear that
“creating a cause of action is a legislative endeavor” that requires
“evaluat[ing] a range of policy considerations,” such as “economic
and governmental concerns, administrative costs, and the impact on
governmental operations systemwide.” Egbert v. Boule, 

,

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Edwards v. Gizzi, et al.


491 (2022) (internal quotation marks omitted). Congress is not only
“far more competent than the Judiciary to weigh such policy
considerations,” but the Judiciary’s “authority to do so at all is, at best,
uncertain.”       

 (internal quotation marks omitted).      So “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.” Ziglar, 

.
These weighty separation-of-powers concerns make the “expansion
of Bivens . . . a disfavored judicial activity.” Hernández v. Mesa, 

 (2020) (internal quotation marks omitted).

        We evaluate potential Bivens claims using a “two-step inquiry.”

.     First, we ask “whether the case presents a new Bivens
context”—whether it is “meaningfully different from the three cases
in which the Court has implied a damages action.” 1 Egbert, 

 (cleaned up). Second, if the case involves a new context, we
“ask whether there are any special factors that counsel hesitation
about granting the extension.” Hernández, 

 (cleaned
up). A special factor must “cause a court to hesitate before” finding
that “the Judiciary is well suited, absent congressional action or
instruction, to consider and weigh the costs and benefits of allowing


        1Edwards argues that we may consider additional case law, but this
is incorrect. “[T]hree cases—Bivens, Davis, and Carlson—represent the only
instances in which the Court has approved of an implied damages remedy
under the Constitution itself.” Ziglar, 

 (emphasis added).

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Edwards v. Gizzi, et al.


a damages action to proceed.” Ziglar, 

. If there are
such factors—“that is, if we have reason to pause before applying
Bivens in a new context or to a new class of defendants—we reject the
request.” Hernández, 

. The Court recently identified
a “single question” at the heart of the two-step inquiry: “whether
there is any reason to think that Congress might be better equipped
to create a damages remedy.” Egbert, 

. “Put another
way, the most important question is who should decide whether to
provide for a damages remedy, Congress or the courts? If there is a
rational reason to think that the answer is ‘Congress’—as it will be in
most every case—no Bivens action may lie.” 

 (emphasis
added) (cleaned up).

        In short, although the Supreme Court has never overruled
Bivens, it has tightly cabined it. Over the past forty years, the Court
has rejected every attempt to expand Bivens that has come before it—
twelve times in all, including as recently as 2022. See 

.

B.      New Context

        Edwards’s claim arises in a new context. “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 remedy was
previously recognized,” Hernández, 

, or otherwise “has
significant parallels to one of the [Supreme] Court’s previous Bivens
cases,” Ziglar, 

; see also 

 (rejecting a claim
under the Fourth Amendment even though Bivens involved a Fourth
Amendment claim).          Differences that are “meaningful enough to

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Edwards v. Gizzi, et al.


make a given context a new one,” include “the constitutional right at
issue,” “the statutory or other legal mandate under which the officer
was operating,” “the presence of potential special factors that
previous Bivens cases did not consider,” or anything else that leads us
to conclude that the plaintiff’s claim bears “little resemblance to the
three Bivens claims the [Supreme] Court has approved in the past.”

.

        This case presents a new Bivens context for two independent
reasons. First, the asserted constitutional right—an excessive-force
claim under the Eighth Amendment—is new. See, e.g., Farrington v.
Diah, No. 22-13281, 

, at *1 (11th Cir. Nov. 2, 2023)
(“[A]n excessive force claim under the Eighth Amendment raises a
new context.”); Landis v. Moyer, No. 22-2421, 

, at *2
(3d Cir. Mar. 5, 2024) (same). Carlson involved a different type of
claim—cruel-and-unusual         punishment       under      the    Eighth
Amendment for failure to provide adequate medical treatment to a
prisoner.       Edwards argues that Eighth Amendment claims for
deliberate indifference are an old context for Bivens claims.          But
deliberate indifference and excessive force are different things. And
differences in “the constitutional right at issue” are meaningful ones.
Ziglar, 

; see also 

 (“[E]ven a modest extension is
still an extension.”).

        Second, claims against officers of the Marshals Service, court-security personnel, and a private prison guard are each a new Bivens
context.       Edwards brings claims against various court-security

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personnel, not prison officials as in Carlson or federal narcotics agents
as in Bivens. See Corr. Servs. Corp. v. Malesko, 

 (2001)
(“Since Carlson we have consistently refused to extend Bivens liability
to any new context or new category of defendants.”); see also Logsdon
v. U.S. Marshals Serv., 

 (10th Cir. 2024) (“[A]gents
of the [U.S. Marshals Service] are a new category of defendant.”);
Lewis v. Bartosh, No. 22-3060, 

, at *2 (2d Cir. Dec. 13,
2023) (affirming the district court’s entry of judgment for Deputy U.S.
Marshals because Deputy Marshals are a new class of defendants and
the Marshals Service has an alternative remedial scheme for
investigating misconduct). None of the three Supreme Court cases
recognizing Bivens actions involved members of the Marshals Service,
court-security personnel, or private prison guards. 2      Nor did they
involve officers acting to secure a courtroom. See 

(a)
(“It is the primary role and mission of the United States Marshals
Service to provide for the security . . . of the United States District
Courts . . . as provided by law.”); see also Zigler, 

 (“the
statutory or other legal mandate under which the officer was
operating” may present a meaningful difference).




        Judge Robinson’s concurrence and the dissent argue that this
        2

category of defendants cannot create a new context because the Federal
Bureau of Narcotics, the agency at issue in Bivens, no longer exists. But
Davis and Carlson were brought against other classes of defendants—a
congressman and prison officials—that do still exist.

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Edwards v. Gizzi, et al.


        In short, this case presents a doubly new Bivens context because
the Supreme Court has never recognized a Bivens remedy concerning
this Eighth Amendment right or against this class of defendants.

C.      Special Factors

        Edwards’s claim also implicates special factors that counsel
against extending Bivens. In particular, Edwards could have sought
damages under the FTCA. 3         When “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.” Egbert, 

 (internal quotation marks omitted).

        Edwards alleges that at least some federal employees assaulted
him in the course of their official duties—a type of claim covered by



        3Edwards and the dissent argue that the Supreme Court in Carlson
concluded that the FTCA does not foreclose relief under Bivens. But when
Carlson was decided 44 years ago, the Court looked to whether “Congress
has provided an alternative remedy which it explicitly declared to be a
substitute for recovery directly under the Constitution and viewed as
equally effective” in assessing whether an alternative remedial scheme
forecloses a Bivens claim. 

 (emphasis altered). Now, the
Court “defer[s] to congressional inaction if the design of a Government
program suggests that Congress has provided what it considers adequate
remedial mechanisms.” Egbert, 

 (emphasis added) (internal
quotation marks omitted). So we must follow the Supreme Court’s own
recent approach in giving “little weight” to Carlson’s conclusion “because it
predates [the Court’s] current approach to implied causes of action and
diverges from the prevailing framework.” 

.

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Edwards v. Gizzi, et al.


the FTCA.        See 

(h). 4   The fact that Congress has
already created a remedy for this situation is “a convincing reason for
the Judicial Branch to refrain from providing a new and freestanding
remedy in damages.”          Ziglar, 

 (internal quotation
marks omitted). 5

                           III.   CONCLUSION

        “Bivens, Davis, and Carlson were the products of an era when
the Court routinely inferred causes of action that were not explicit in


        4Edwards’s claim is, at bottom, a tort claim. But even if it were a
purely constitutional claim not directly covered by the FTCA, “it is the
overall comprehensiveness of the statutory scheme at issue, not the
adequacy of the particular remedies afforded, that counsels judicial caution
in implying Bivens actions.” Dotson v. Griesa, 

 (2d Cir.
2005). “[T]he question whether a given remedy is adequate is a legislative
determination that must be left to Congress, not the federal courts.”
Egbert, 

.
        5 Other Courts of Appeals have held that the availability of relief
under the FTCA is a special factor that counsels against extending Bivens to
a new context. See, e.g., Ketchup v. United States, No. 23-13219, 

, at *2 (11th Cir. June 3, 2024); Williams v. Keller, No. 21-4022, 

, at *4 (10th Cir. Oct. 1, 2021); Oliva v. Nivar, 

(5th Cir. 2020); Schwarz v. Meinberg, 

, 734-35 (9th Cir. 2019).
But see Sargeant v. Barfield, 

, 368 n.5 (7th Cir. 2023). And two
have held that the “the internal [Marshals Service] grievance procedure and
the Department of Justice’s Office of the Inspector General (OIG)
investigation procedure are adequate alternative remedies” in cases
involving the Marshals. Logsdon, 

; Cain v. Rinehart, No. 22-
1893, 

, at *4 (6th Cir. July 25, 2023).

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22-654-cv
Edwards v. Gizzi, et al.


the text of the provision that was allegedly violated.” Hernández, 

 (internal quotation marks omitted).           That era is over.
And the Supreme Court has since made clear that Bivens extensions
are inappropriate when “there is any rational reason (even one) to
think that Congress is better suited to weigh the costs and benefits of
allowing a damages action to proceed.”            Egbert, 

(internal quotation marks omitted). 6        Here, Edwards asks us to
extend Bivens claims to a doubly new context despite special factors
that counsel us to hesitate before doing so.           That is Congress’s
prerogative, not ours.      I thus vote to affirm the judgment of the
district court.




        6 To be fair, the Supreme Court’s reluctance to confront the
constitutional infirmity of Bivens and its mixed messages about Bivens’s
remaining vitality continue to confuse lower courts. Egbert, 

(Gorsuch, J., concurring) (noting that the Court has left the “door ajar” and
held out “false hope” that “someone, someday might walk through it even
as it devises a rule that ensures no one ever will.” (cleaned up)).

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22-654
Edwards v. Gizzi

ROBINSON, Circuit Judge, concurring in the judgment:

      I concur in the judgment affirming the district court’s dismissal of

Edwards’s Bivens claims. This case involves excessive force claims against Court

Security Officers (CSOs), officers of the U.S. Marshals Service, and a private

security officer. They are based on actions those officers took while quelling a

public courtroom disturbance, rather than effecting an arrest.        And because

Edwards was allegedly subjected to excessive force after his conviction, his claims

rely on Eighth Amendment, rather than Fourth Amendment, analysis. In light of

these various distinctions from the excessive force claim in Bivens, considered

together, I agree that Edwards’s claims are different “in a meaningful way” from

the Bivens claims that continue to be recognized by the Supreme Court. See Ziglar

v. Abbasi, 

 (2017) (cautioning against expanding the Bivens remedy

to cases that differ “in a meaningful way from previous Bivens cases decided by”

the Supreme Court).

      I write separately to stress that we need not—and should not—hold that any

of these individual distinctions, in and of themselves, would necessarily defeat

Edwards’s ability to seek Bivens relief on all of his claims.   It is true that the

Supreme Court has repeatedly declined to extend Bivens beyond its established
applications. But on twelve different occasions since recognizing a Bivens remedy

in Carlson v. Green, 

 (1980), the Supreme Court has—as recently as

2022—declined to overrule Bivens. 1 In other words, just as we must take care to

avoid improperly expanding the Bivens remedy, we also must follow the Supreme

Court’s directive that in the heartland cases, Bivens relief remains alive and well.

        Even though the Supreme Court held in Ziglar that “expanding the Bivens

remedy is now a ‘disfavored’ judicial activity,” 

 (quoting Ashcroft v.

Iqbal, 

 (2009)), the Court also emphasized that Bivens remains good

law. Writing for the Court, Justice Breyer explained:

        [T]his opinion is not intended to cast doubt on the continued force, or
        even the necessity, of Bivens in the search-and-seizure context in
        which it arose. Bivens does vindicate the Constitution by allowing
        some redress for injuries, and it provides instruction and guidance to
        federal law enforcement officers going forward. 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. at 134.




1 See Chappell v. Wallace, 

 (1983); Bush v. Lucas, 

 (1983); United States v.
Stanley, 

 (1987); Schweiker v. Chilicky, 

 (1988); F.D.I.C. v. Meyer, 

(1994); Correctional Services Corp. v. Malesko, 

 (2001); Wilkie v. Robbins, 

(2007); Hui v. Castaneda, 

 (2010); Minneci v. Pollard, 

 (2012); Ziglar v. Abbasi,

 (2017); Hernandez v. Mesa, 

 (2020); Egbert v. Boule, 

 (2022).
                                                   2
      The Bivens remedy has never been limited to claims brought by people

harmed in the exact same manner, under the exact same conditions, by the same

class of federal officers as those in Bivens, Davis, and Carlson. Rather, the Supreme

Court has cautioned against applying Bivens to circumstances that are different “in

a meaningful way” from the established trilogy of Bivens cases.

      A case is not meaningfully different just because there is some factual

difference from Bivens, Davis, or Carlson.       Rather, in Ziglar, the Court identified

various factors that might cause a case to differ in a meaningful way from the Bivens

trilogy, depending on that case’s particular context:

      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.

Ziglar, 582 U.S. at 139–40. The Court did not, however, hold that any one of these

factors, by itself, necessarily creates a meaningful difference. Put another way, a

court cannot simply plug in the factors identified in Ziglar. Instead, it must apply

those factors to the nature of the claim to determine if the claim itself is

meaningfully different.

                                            3
      In short, Bivens may not spawn new, meaningfully different claims for

damages against individual federal agents for violating individuals’ constitutional

rights, but in its core applications, as our sister circuits have recognized, Bivens

relief remains viable. See, e.g., Hicks v. Ferreyra, 

, 166–69 (4th Cir. 2023)

(holding in context of warrantless seizures of a Secret Service agent by U.S. Park

Police that a Bivens remedy remains available to address violations of the Fourth

Amendment involving unjustified, warrantless searches and seizures by line

officers performing routine criminal law enforcement duties and explaining that

the Supreme Court’s “severe narrowing of the Bivens remedy in other contexts

does not undermine the vitality of Bivens in the warrantless-search-and-seizure

context of routine criminal law enforcement”); Snowdon v. Henning, 

,

239–40, 245–46 (7th Cir. 2023) (allowing a “straightforward application of Bivens

itself” to proceed in a Fourth Amendment claim against a DEA agent for excessive

force in making an arrest); see also Greenpoint Tactical Income Fund LLC v. Pettigrew,

, 564 n.2 (7th Cir. 2022) (explaining that Egbert v. Boule, 

(2022) “does not change [the court’s] understanding of Bivens’ continued force in

its domestic Fourth Amendment context”).




                                           4
      Especially concerning is the suggestion that any excessive force claim

against a rank-and-file Deputy U.S. Marshal is meaningfully different from Bivens.

As Justice Sotomayor recently noted, there are “83 different federal law

enforcement agencies with authority to make arrests and provide police

protection.” See Egbert, 

 (Sotomayor, J., concurring in the judgment

in part and dissenting in part) (citing U.S. Dep’t of Justice, Connor Brooks, Federal

Law Enforcement Officers, 2016—Statistical Tables (NCJ 251922, Oct. 2019),

https://bjs.ojp.gov/content/pub/pdf/fleo16st.pdf [https://perma.cc/ARG9-WTPX]).

“[I]f the ‘new context’ inquiry were defined at such a fine level of granularity,

every case would raise a new context, because the Federal Bureau of Narcotics [the

agency at issue in Bivens] no longer exists.” 

      Thus, applying Supreme Court precedent, we should not decide whether

any individual factor in Edwards’s case, on its own, would preclude Bivens relief.

Here, we have Eighth Amendment excessive force claims against CSOs, officers of

the U.S. Marshals Service, and a private security officer, based on how they

responded to a public courtroom outburst. This specific scenario is outside the

heartland of Bivens cases that remain alive and well.




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22-654
Edwards v. Gizzi

PARKER, Circuit Judge, dissenting:

        Despite many opportunities to overrule Bivens, 1 Davis, 2 and Carlson, 3 the

Supreme Court has continued to reassure us that these cases continue to offer

meaningful and ostensibly necessary protection for basic constitutional rights. 4 Though

we are cautioned to refrain from expanding the Bivens line of cases because that is the

work of the Congress, we are also reminded that those cases are alive and well and that

lower courts cannot overturn “the settled law of Bivens” sub silentio. See, e.g., Ziglar v.

Abbasi, 

 (2017). As with all our cases, we take the Supreme Court at its

word.

          Edwards, just like Bivens, brought claims against rank-and-file federal law-

enforcement officers for violating his constitutional right to be free from excessive force

while in custody. Bivens, 

. He asserted those claims under the Eighth

Amendment, one of the few constitutional provisions for which the Supreme Court has

expressly approved the Bivens relief Edwards seeks here. Carlson, 

. I do

not join my colleagues because I remain unpersuaded that they have convincingly




1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 

 (1971).
2 Davis v. Passman, 

 (1979).
3 Carlson v. Green, 

 (1980).

4 See Chappell v. Wallace, 

 (1983); Bush v. Lucas, 

 (1983); United States v. Stanley, 

 (1987); Schweiker v. Chilicky, 

 (1988); F.D.I.C. v. Meyer, 

 (1994); Corr. Servs.
Corp. v. Malesko, 

 (2001); Wilkie v. Robbins, 

 (2007); Hui v. Castaneda, 

(2010); Minneci v. Pollard, 

 (2012); Ziglar, 

; Hernandez v. Mesa, 

 (2020);
Egbert v. Boule, 

 (2022).
articulated why Edward’s allegations differ in a meaningful way from previous Bivens

cases decided by the Supreme Court.

       The Supreme Court’s observation that a claim may present a “new context” even

if it has “has significant parallels to one of the Court’s previous Bivens cases” sends us

down a rocky road. Ziglar, 

. We derive some assistance from the Court’s

illustrative examples of how “[a] case might differ in a meaningful way” from the Bivens

heartland. 

 (emphasis added). However, we are afforded precious little

guidance when we tackle the daunting, real-life task of sorting out from the varied and

unique cases that come before us those that are “meaningfully different” from the three

in which the Supreme Court expressly approved Bivens claims and those whose

differences are not meaningful. Egbert, 

.

       The unresolved problem we face is that “[a]t a sufficiently high level of

generality, any claim can be analogized to some other claim for which a Bivens action is

afforded, just as at a sufficiently high level of particularity, every case has points of

distinction.” Arar v. Ashcroft, 

 (2d Cir. 2009). Calibrating the precise

level of granularity at which we assess whether one set of facts differs meaningfully

from another remains the core challenge of adjudicating these cases in lower federal

courts, substantially because that task is shrouded in so much confusion. But it is

nonetheless our duty to draw those distinctions in a manner that is equally as faithful to




                                             2
the Supreme Court’s insistence that Bivens, Davis, and Carlson are alive as it is to the

Court’s instruction that we are not to expand those precedents.

       All of this is complicated by the fact the Supreme Court has begun to tell that

Bivens is, for all intents and purposes, a relic of an “ancien regime.” See Hernandez v.

Mesa, 

 (2020); Ziglar, 

 (quoting Alexander v. Sandoval, 

 (2001)). The import of that characterization is unclear. After all, volume

after volume of the U.S. Reports catalogues “ancient regimes” that unquestionably

remain good law and indeed are essential to our constitutional democracy. Still,

regardless of how “ancient” one may be inclined to view constitutional torts

jurisprudence dating between 1971 and 1980, there is no escaping the fundamental

constraint that so long as Bivens, Davis, and Carlson remain “good” law, lower courts are

constitutionally foreclosed from reading the Supreme Court’s latest doubts about

Bivens’ supposed origins in a manner that would functionally overturn those

precedents.

        But this is where even more serious analytical problems start. It is difficult to

understand or articulate why the Constitution creates liability on the one hand for

federal officers who are deliberately indifferent to custodial abuses but, on the other

hand, immunizes federal officers who actively participate in custodial abuses. See

Carlson, 

 n.1. And in this case, the path to concluding that Edwards’

excessive-force allegations “differ[] in a meaningful way from previous Bivens cases


                                              3
decided by th[e Supreme] Court” forces us to abandon what the Supreme Court has

repeatedly told us is true: that the Constitution supplies a claim where rank-and-file

federal law enforcement officers are alleged to have violated the constitutional right to

be free from excessive force. Egbert, 

 (2022) (declining to reconsider

Bivens).

       It cannot be that Edwards’ claims threaten an impermissible expansion of Bivens

on the theory that it names “a new class of defendants” – i.e., Deputy U.S. Marshals –

simply because no U.S. Marshals were sued in Bivens. As the second concurrence points

out, the Bivens defendants were agents of the Federal Bureau of Narcotics, an agency

that no longer exists. See Concurring Op. (Robinson, J.), at *5 (citing Egbert, 

 (Sotomayor, J., concurring in part and dissenting in part)). It necessarily follows

that if employees of a nominally different agency are “a new class of defendants,” then

Bivens itself no longer exists. In other words, we are nonplussed as to how Bivens

remains good law if future cases alleging the same constitutional violations will fail

unless and until the federal government recharters or renames one of its agencies

“Federal Bureau of Narcotics.” It certainly bears noting that the now-defunct Federal

Bureau of Narcotics was housed within the U.S. Department of Justice, right alongside

the U.S. Marshals Service.

       The second concurrence appears to recognize some of the many problems that

will flow from resolving this case on any of the distinctions that have been employed to


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present it as a potential Bivens “expansion.” 

 Despite sowing doubts about whether

any one of those distinctions has any legal meaning on its own, the opinion nonetheless

goes on to conclude that the result changes when these “distinctions” are “considered

together” – but without telling us why. Id. at *1 (emphasis in original). It gives us no

guidance on how those factors combine, how they relate to one another, the weight that

each ought to be given, or anything else capable of illuminating the point at which a

combination of legally insufficient distinctions morphs into a meaningful difference.

       In any event, even if we assume arguendo that this case presents a “meaningfully

different” Bivens context, we are supplied with no “special factors” counseling against

the availability of Bivens remedy for the constitutional violation that Edwards alleges.

The existence of the Federal Tort Claims Act, which imposes liability against the United

States and not against individual officers – is clearly not an “alternative remedial

scheme” for a constitutional remedy that is centered entirely individual officer

deterrence. Corr. Servs. Corp. v. Malesko, 

 (2001) (“Bivens . . . is

concerned solely with deterring the unconstitutional acts of individual officers.”). It is

in part for this reason that the Supreme Court has declined to extend Bivens to

employees of private contractors presumably subject to vicarious liability. For instance,

in Malesko – the case Egbert highlights to suggest that a “new category of defendants”

can portend a “new context” under Bivens – the Supreme Court declined to extend

Bivens to claims against a private Bureau of Prisons contractor on the theory that Bivens


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is intended to deter individual officers and that its deterrent effect is lost if liability runs

to the employer: “[I]f a corporate defendant is available for suit, claimants will focus

their collection efforts on it, and not the individual directly responsible for the alleged

injury.” 

; see Egbert, 

. Edwards seeks relief from individual

rank-and-file federal law enforcement officers who, in the course of their work, are

alleged to have violated the constitutional right to be free from excessive force. This is

precisely the class of officers whom Bivens is designed to deter from committing

constitutional violations, and it is precisely the type of claim that Bivens has always been

thought to cover.

            In sum, the fact that the Supreme Court continues to express serious doubts

about Bivens’ future does not, in my view, grant a license to sub silentio do for the

Supreme Court what it has thus far been unwilling to do itself. If the Supreme Court

plans to take away important protections against constitutional violations and allow

federal officials to act unconstitutionally without consequence unless and until

Congress acts, then it should face the nation and say as much. It should not delegate

that work to us.

           Until then, we must not forget that there is a reason our constitutional system

preserves remedies like the one contemplated in Bivens: to protect people from illegal

actions by the Executive (or members of Congress) 5 for which there would otherwise be


5   Davis, 

.

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no meaningful consequence or repair. As Justice Scalia emphasized in Armstrong v.

Exceptional Child Center, Inc., judge-made remedies have played a critical role in the

“long history of judicial review of illegal executive action, tracing back to England.” 

 (2015).




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