The Supreme Court Seems Poised to Extend Protections Shielding Federal Officers from Civil Liability
Thanks to a string of recent decisions by the U.S. Supreme Court, suing a federal officer in federal court for an alleged constitutional rights violation has become unusually challenging. Just yesterday, the justices heard arguments in a case that could widen the shield farther, potentially depriving individuals of civil recourse for the misconduct of federal officials.
To begin, a concise account of how we arrived at this point. In the 1971 decision known as Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Court allowed a Brooklyn resident to press a federal claim in federal court against a group of agents who were thought to have violated his constitutional rights. The Court noted that damages have long been viewed as the ordinary remedy for invasions of personal liberty and that a damages award could be recovered for Fourth Amendment violations by federal actors. From that ruling, lawyers soon began referring to a Bivens claim whenever a federal officer was sued for infringing someone’s rights.
Over roughly the last decade, however, the Court has steadily eroded Bivens until, effectively, little remains of it. In Egbert v. Boule (2022), for instance, the Court refused to permit a Bivens action against an FBI agent credibly accused of violating the Fourth Amendment, mirroring the kind of scenario that originally gave rise to Bivens itself. But because a majority on the current Court views Bivens as emblematic of judicial activism—where an implied federal cause of action was recognized without a statute from Congress—the Bivens doctrine has not been enforced in practice.
That brings us to yesterday’s oral arguments in the case of Nielsen v. Watanabe. The dispute grew out of an incident in which a federal inmate named Kekai Watanabe sustained serious injuries in a fight within a prison gang. He contends that he did not receive adequate medical care from his captors, despite repeated requests, and he later filed a Bivens claim against nurse Francis Nielsen for violating his Eighth Amendment right to be free from cruel and unusual punishment.
In a closely related line of authority, Carlson v. Green (1980) allowed a Bivens claim to go forward in a similar Eighth Amendment context: the estate of a prisoner was permitted to sue prison officials for allegedly contributing to the prisoner’s death by denying medical treatment. If the Court were to treat Bivens as it does many other precedents—by actually adhering to it—the reasoning in Carlson v. Green would seem to bolster Watanabe’s efforts to move his Bivens claim forward now. After all, both Carlson v. Green and Nielsen v. Watanabe revolve around the same core issue: a Bivens suit alleging that prison officials violated the Eighth Amendment by failing to provide proper medical care.
Yet the current Court does not appear eager to permit additional Bivens claims in any setting, including Eighth Amendment cases. And while the arguments yesterday indicated that the justices will likely refrain from wholly overruling Bivens, several members still signaled a willingness to deny this latest Bivens action.
Back in 2021, Judge Don Willett of the U.S. Court of Appeals for the Fifth Circuit voiced his opposition to what he termed a “rights-without-remedies regime”—a situation in which the Supreme Court has narrowed Bivens to such an extent that redress for unconstitutional acts by federal officers becomes extremely limited or essentially nonexistent, allowing officials to operate in something resembling a Constitution-free zone.
Regrettably, Willett’s concerns remain as pressing and valid as ever.
