“Bivens is now all but dead.” Rowland v. Matevousian, 2024 U.S. App. LEXIS 29406 (10th Cir. Nov. 19, 2024). But we already knew that. Not a Fourth Amendment case, but a prison denial of medical care, but that’s where Bivens been going for several years now:
Having come on the scene during an “ancien regime” where the Supreme Court “routinely” implied causes of action, Ziglar v. Abbasi, 582 U.S. 120, 132, 137 S. Ct. 1843, 198 L. Ed. 2d 290 (2017), Bivens is now all but dead. See Mohamed v. Jones, 100 F.4th 1214, 1236, 1237 (10th Cir. 2024) (Tymkovich, J., dissenting) (observing that the Supreme Court’s “abrogative process [of Bivens] has been ‘gradual, but relentless'” such that the “‘right answer’ to whether to recognize a Bivens cause of action ‘will always be no'”) (citations omitted). So much so, in fact, that the Supreme Court has not recognized a Bivens claim since 1980, and it has unambiguously stated that “if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.” Egbert v. Boule, 596 U.S. 482, 502, 142 S. Ct. 1793, 213 L. Ed. 2d 54 (2022).
HN4 And this makes sense. A Bivens action “places great stress on the separation of powers” by allowing the judiciary to intrude upon the exclusive law-making domain of the legislature. Egbert, 596 U.S. at 498 n.3. After all, “[w]hen a court recognizes an implied claim for damages”—as is the case for a Bivens claim—it “create[s] a new cause of action [that] assign[s] new private rights and liabilities—a power that is in every meaningful sense an act of legislation.” Id. at 503 (Gorsuch, J., concurring). Therefore, given that it is a “significant step under separation-of-powers principles for a court … to create and enforce a cause of action for damages,” Ziglar, 582 U.S. at 133, the Supreme Court has scaled back its Bivens jurisprudence considerably—effectively relegating it to a “relic of the 20th century.” Logsdon v. United States Marshal Serv., 91 F.4th 1352, 1355 (10th Cir. 2024). And this message has not gone unnoticed, as we are on record stating that extending Bivens would be “an action that is impermissible in virtually all circumstances.” Silva v. United States, 45 F.4th 1134, 1140 (10th Cir. 2022).
Still, Mr. Rowland believes he can thread the needle. So, to answer this contention, we must embark upon the two-step Bivens inquiry to see if his claims are cognizable. Accordingly, we must first examine whether Mr. Rowland’s case arises in a new Bivens context, or in other words, analyze whether his case is “meaningful[ly]” different from the three cases in which the Court has implied a damages action.” Egbert, 596 U.S. at 492. Second, we must consider whether there are special factors suggesting that the “the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.'” Id. (quoting Ziglar, 582 U.S. at 136). “If there is even a single ‘reason to pause before applying Bivens in a new context,’ a court may not recognize a Bivens remedy.” Id. (citation omitted).
Colorado Politics: 10th Circuit underscores most lawsuits against federal officials are ‘dead’ by Michael Karlik. I for one wouldn’t be surprised if Bivens is done away with by SCOTUS, despite the fact the Court never takes radical positions anymore.
