‘Bivens Is Dead’ Says The 10th Circuit, Confirming You’re Only Wasting Your Time When Suing Federal Officers

Way back in the day (1971, to be precise), the Supreme Court created a cause of action to sue federal officers over rights violations. The original case, Bivens v. Six Unknown Named Agents, involved Webster Bivens and the warrantless search of his Brooklyn home by FBN (Federal Bureau of Narcotics — the precursor to the DEA) agents, which was then followed by his warrantless arrest.

With nothing else to go with at that point, the Supreme Court sided with Bivens, creating an implied cause of action that roughly aligned with Section 1983 of the US Code, which did the same thing for local law enforcement officers and other government employees who weren’t federal employees.

That was the last of the good news. Ever since then, the Supreme Court has done what it can to make sure federal agents can’t actually be sued, despite creating precedent that finally allowed them to be sued.

In almost every case, the Supreme Court ends up telling courts they can’t expand Bivens to cover other rights violations unless they involve (1) Webster Bivens and/or (2) six unknown named agents. I wish I were exaggerating or heavily paraphrasing legal developments over the years, but that’s pretty much exactly what it is.

This means most people incarcerated in federal prisons will never be able to successfully sue prison employees no matter how often or how egregiously their rights are violated. This is why Mexican families can’t sue Border Patrol officers for killing their children by firing bullets into Mexico from the litigation-friendly confines of US soil.

And that’s why this Tenth Circuit Appeals Court decision [PDF] leads off this exercise in futility by pointing out the futility before it dives into the weed of its legal discussion. (h/t Orin Kerr)

Dustin Rowland sued prison officials after they (allegedly) deliberately ignored his medical issues (an untreated hernia). While this may seem minimal in comparison to other cases of deliberate indifference suffered by incarcerated people, it still matters. The government has an obligation to take care of the people in its custody. When it refuses to do so, it’s a legal cause of action. Or, at least, it’s supposed to be.

Rowland exhausted all of his other options before filing suit, so the lower court and the Tenth Circuit were unable to simply claim the lawsuit was premature and dismiss it on those grounds.

But that would have been the simpler obstacle to hurdle. Despite the original Bivens decision creating a cause of action for suits like these, the post-Bivens judicial environment has been far less than welcoming. Even when the occasional appeals court finds in favor of the plaintiffs, the Supreme Court is swift to reject anything that might look like actual justice. And that leads to this: the Tenth Circuit Appeals Court giving Dustin Rowland the bad news right up front. A bit of shade is thrown by the Tenth Circuit:

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 (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 (2022).

And there it is: the same court that ushered this cause of action into existence abandoned it pretty much completely less than a decade later. There’s still a way to get a Bivens action to stick, but you have to time-travel back to 1971 and be named Webster Bivens to get it to work.

None of that makes sense in terms of rights litigation. And yet, here’s the Tenth Circuit offering up additional explanation:

And this makes sense.

Ah. Well. Nonetheless.

To be fair, that quote is taken out of context. It is a direct quote of the paragraph immediately following the previous paragraph quoted in full above. But it does go on from there. In the sense that any of this “makes sense,” it only does so because the Supreme Court says it does and the Tenth Circuit — obliged to follow Supreme Court rulings — has affirmed that this narrowing of Bivens to the point of nonexistence complies with Supreme Court guidance.

[T]he 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).

So, while the court recognizes that Rowland — like others before him — is doing all he can to “thread the needle,” the reality is there’s no eye to aim for, no matter how fine the thread Rowland is carrying. Rowland alleges medical indifference by federal prison officers. The case he cites does the same. The difference is that the case he cites involves prison officials acting in opposition to medical advice, where in Rowland’s case, it’s simply a matter of being ignored.

And the court agrees with Rowland. But that doesn’t matter, because the Supreme Court says absolutely no expansion of Bivens is allowed and, indeed, hasn’t been allowed for more than 40 years.

Indeed, these differences are more than “small” and would require, at bare minimum, an impermissible “modest extension” of Bivens.

Because Mr. Rowland’s claims are materially different from any of the three cases where a Bivens cause of action was recognized, we conclude Mr. Rowland’s case arises in a new Bivens context.

So, there is no good news here. The Tenth Circuit leads with bad news and, several pages later, delivers even more bad news to the plaintiff attempting to sue federal officers.

[T]o be sure, the most relevant question under Bivens now is “whether 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, 596 U.S. at 496 (citation omitted). And here, Congress will always be better suited to make such a call because, as the Supreme Court has emphasized, recognizing a Bivens action improperly merges the “Constitution’s separation of legislative and judicial power.” And more importantly, courts are simply ill-suited to “predict the ‘systemwide’ consequences of recognizing a cause of action under Bivens.”

That’s entirely laughable. This Congress isn’t better suited to do much. And it’s exceptionally uninterested in separating powers, not if it might mean limiting what the incoming president can do or what direct influence they (Congress and President-elect Trump) might be able to impose on a Supreme Court fully stocked with Trump’s hand-picked replacements for outgoing “liberal” justices.

Even in the best of times, Congress has shown little interest in ensuring the rights of inmates aren’t violated. When forced to deal with prison-related issues, more money and time is spent figuring out the logistics involved in locking up even more people than we already do. The amount of time spent considering legal options for inmates whose rights have been violated is less than a rounding error.

Bivens is dead. And, for all intents and purposes, Webster Bivens will be pretty much the last person to secure a win under this legal concept. And it didn’t even work for Bivens. It set precedent that was supposed to help those that followed. But the Supreme Court has spent nearly 50 years making sure it doesn’t work for anyone. What’s seen in this decision is resignation. But nowhere in the hundreds of pages of jurisprudence involving Bivens actions will you find anything approaching justice.