NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 22-3194
ALITO TIJWAN CROSS,
Appellant
v.
BUSCHMAN; PHYSICIAN’S ASSISTANT WICKHAM; H. QUAY
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-22-cv-00098)
District Judge: Honorable Christopher C. Conner
Submitted Under Third Circuit L.A.R. 34.1(a)
January 17, 2024
Before: SHWARTZ, MATEY, and PHIPPS, Circuit Judges.
(Opinion filed: July 3, 2024)
OPINION ∗
∗
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.
MATEY, Circuit Judge.
After prison officials failed to treat his diabetes, Plaintiff-Appellant Alito Cross brought this Bivens action alleging Defendants-Appellees (“Officials”) acted with deliberate indifference to a serious medical need in violation of the Eighth Amendment. The District Court dismissed the complaint, holding that no Bivens remedy is available in this context. We will vacate the District Court’s order and remand for further proceedings.
I.
Cross is a federal prisoner with diabetes. Cross alleges that he repeatedly passed out from diabetic complications. Though he sought medical care, Defendant-Appellee Buschman, a doctor at the prison, allegedly failed to provide appropriate treatment.
Cross then sued Buschman and two other prison officials (Appellees Wickham and Quay) for deliberate indifference under the Eighth Amendment asking for damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and Carlson v. Green, 446 U.S. 14 (1980).
Exercising its power to screen prisoner complaints under 28 U.S.C. § 1915A, the District Court dismissed Cross’s complaint with prejudice, concluding that no Bivens remedy is available in this context. The District Court did not address whether Cross had sufficiently pled a constitutional violation. Instead, the Court held that Cross’s claim presented a new Bivens context because Cross failed to allege that he suffered any harm caused by the lack of medical care. The District Court also held that the Federal Bureau of Prisons’ administrative remedy system was a special factor counseling against and
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ultimately precluding the extension of a Bivens remedy and denied leave to amend. Cross timely appealed. 1 II.
Bivens held that the Fourth Amendment itself “gives rise to a cause of action for damages consequent upon” a violation of the provision by a federal official, 403 U.S. at 389, and Carlson extended that remedy to federal prisoners alleging deliberate indifference to serious medical needs, 446 U.S. at 18–23. To determine whether Bivens and Carlson allow Cross to sue for damages, 2 we must first ask whether this case “presents ‘a new Bivens context,’” an inquiry that requires determining whether Cross’s claim is “‘meaningful[ly]’ different” from Carlson. Egbert v. Boule, 596 U.S. 482, 492 (2022) (quoting Ziglar v. Abbasi, 582 U.S. 120, 139 (2017)). If the “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.’” Id. (quoting Ziglar, 582 U.S. at 136).
The Officials do not defend the District Court’s conclusion that Cross’s claim presents a new Bivens context based on Cross’s alleged failure to plead that he suffered any harm caused by purportedly deliberate indifference. And for good reason. Construed
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liberally, as we must at this stage, see Estelle v. Gamble, 429 U.S. 97, 106 (1976), Cross’s complaint alleges that he suffered impaired vision, mental stress, and several episodes of lost consciousness, all stemming from his untreated diabetes. 3 On appeal, the Officials raise various alternative grounds for affirmance, including arguments for why Cross’s claim presents a new Bivens context. But none were addressed by the District Court, and we leave these arguments for remand. See Gov’t of V.I. v. Charleswell, 24 F.3d 571, 577 (3d Cir. 1994). 4
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For these reasons, we will vacate the District Court’s order and remand for further proceedings consistent with this opinion.
MATEY, Circuit Judge, concurring.
“Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement,” DeVillier v. Texas, 144 S. Ct. 938, 943 (2024), but Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), created one. In recent years, the Supreme Court has “cabined” Bivens’ “scope, undermined its foundation, and limited its precedential value.” Hernandez v. Mesa, 589 U.S. 93, 118 (2020) (Thomas, J., concurring). But Bivens lives on in three discrete contexts that now sit uncomfortably with the historically grounded restraint on inferred causes of action. I write separately to explain why those lingering settings raise recurring questions about the role of the President in executing the laws.
I.
There is little new to say about Bivens beyond a bit of history and a recap of where things stand.
Though “[t]he Constitution is almost completely silent concerning the remedies to be employed for its implementation,” Alfred Hill, Constitutional Remedies, 69 Colum. L. Rev. 1109, 1118 (1969), 1 actions for damages against federal officials are nothing new.
1 “To the framers, special provision for constitutional remedies probably appeared unnecessary, because the Constitution presupposed a going legal system, with ample remedial mechanisms, in which constitutional guarantees would be implemented.” Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1779 (1991). An assumption that played out in practice, as for most of our Nation’s history “constitutional ‘public law’ protections [have been] intricately bound up with—indeed, presuppose[d]—a general backdrop of ‘private law’ protections defining primary rights of personal property and bodily liberty.” Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1507 (1987).
From the Founding 2 to the middle of the twentieth century, federal officials who injured private parties in violation of the Constitution routinely faced damages actions in state
2 See, e.g., Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) (Marshall, C.J.)
(holding federal official was subject to a damages suit for trespass when the official conducted an unlawful seizure); Imlay v. Sands, 1 Cai. R. 566 (N.Y. Sup. Ct. 1804); Wise v. Withers, 7 U.S. (3 Cranch) 331 (1806) (Marshall, C.J.); Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246 (1818) (Story, J.). This early practice continued throughout the nineteenth century. See, e.g., Mitchell v. Harmony, 54 U.S. 115 (1851); United States v. Lee, 106 U.S. 196 (1882); cf. James E. Pfander & Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U. L. Rev. 1862 (2010) (using congressional records between 1789 and 1860 to collect examples of judgments against federal officers for which the officers sought indemnification); Wheeldin v. Wheeler, 373 U.S. 647, 652 (1963) (“When it comes to suits for damages for abuse of power, federal officials are usually governed by local law.”). Even before the Founding, the Crown’s agents could be held liable for damages in a suit at common law. See Louis L. Jaffe, Suits against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 1–2 (1963) (“From time immemorial many claims affecting the Crown could be pursued in the regular courts if they did not take the form of a suit against the Crown. . . . If the subject was the victim of illegal official action, in many cases he could sue the King’s officers for damages. . . . This was the situation in England at the time the American Constitution was drafted.”).
Courts rarely required a constitutional violation to be part of the plaintiff’s complaint, and the federal official’s status appeared as a defense. See Jennifer L. Mascott & R. Trent McCotter, Egbert v. Boule: Federal Officer Suits by Common Law, 2021– 2022 Cato S. Ct. Rev. 111, 132–34 (2022); Fallon & Meltzer, supra, at 1781 (“In many cases, a plaintiff denied relief from the sovereign could seek alternative redress from the official through whom the government had acted; a tradition arose under which an official who pleaded a defense of official authority would be ‘stripped’ of that shield when his conduct violated the Constitution, and hence held liable like a private tortfeasor.”). But common law causes of action—like trespass or conversion—were still the vehicle to vindicate the violation of an underlying constitutional right. See Buchanan v. Barr, 71 F.4th 1003, 1014–15 (D.C. Cir. 2023) (Walker, J., concurring); Amar, supra, at 1506–07.
and federal court. 3 It was a system that stood stable for nearly two centuries 4 before Bivens created a damages remedy inferred from the Constitution. The project continued in Davis v. Passman, 442 U.S. 228 (1979), and reached its high watermark in Carlson v. Green, 446 U.S. 14 (1980), which presumes an implied action for any alleged constitutional harm and then requires the defendants to: 1) “demonstrate ‘special factors counselling hesitation in the absence of affirmative action by Congress’”; or 2) “show that Congress has provided an alternative remedy which it explicitly declared to be a
3 A practice that continued even after Bivens. See, e.g., Hernandez v. Lattimore, 612 F.2d 61 (2d Cir. 1979); Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977). The ratification debates provide some evidence that the Founding generation saw these suits as important checks on federal power. See Mascott & McCotter, supra, at 131; Andrew Kent, Lessons for Bivens and Qualified Immunity Debates from Nineteenth-Century Damages Litigation Against Federal Officers, 96 Notre Dame L. Rev. 1755, 1758 (2021) (“It is well known and uncontroversial that the Framers and ratifiers of the Constitution in 1787–88 expected that common law or general law would supply forms of action to contest many kinds of misconduct by federal officers.”). Which is consistent with Founding-era judicial assumptions as no court (and least none that I can find) explored whether the Constitution itself provided a means to recover damages for constitutional violations by a federal actor. Cf. Bell v. Hood, 327 U.S. 678, 684 (1946) (stating that whether a federal court “can grant money recovery for damages said to have been suffered as a result of federal officers violating” federal constitutional rights in the absence of a statutory cause of action is a “question [that] has never been specifically decided by this Court”).
4 Things began to change in the early twentieth century. Erie’s arrival brought about the death of general law causes of action. See Hernandez, 589 U.S. at 100–01, 110 n.8; James E. Pfander, Iqbal, Bivens, and the Role of Judge-Made Law in Constitutional Litigation, 114 Penn St. L. Rev. 1387, 1415 (2010); O’Connor v. Eubanks, 83 F.4th 1018, 1028 & n.4 (6th Cir. 2023) (Thapar, J., concurring) (discussing Erie’s impact on remedies available for violating the Fifth Amendment’s Takings Clause). A path that some argue could have been avoided, even accepting Erie’s premises. See Carlos M. Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question, 161 U. Pa. L. Rev. 509, 540–42 (2013). That left state law as the primary constitutional gap filler providing the means to remedy constitutional violations. At least until federal legislation limited the availability of state tort suits against federal officers. See id. at 566–82.
substitute for recovery directly under the Constitution and viewed as equally effective.” 446 U.S. at 18–19 (quoting Bivens, 403 U.S. at 396).
In the years since, the Supreme Court has considered—and declined—some twelve requests to imply a new cause of action for damages under the Constitution. 5 In doing so, the Court has reframed the Bivens inquiry, discarded Carlson’s reasoning, and directed courts to presume that Bivens does not apply. See Egbert v. Boule, 596 U.S. 482, 490–94 (2022). In addition, where Carlson focused exclusively on alternative remedies provided by Congress, 446 U.S. at 19–23, newer decisions consider the availability of administrative remedies, see, e.g., Egbert, 596 U.S. at 497–98; Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001). And those alternative remedies, whether regulatory or legislative, need not provide the same relief as a Bivens damages action. See Egbert, 596 U.S. at 493 (“Nor does it matter that ‘existing remedies do not provide complete relief.’” (quoting Bush v. Lucas, 462 U.S. 367, 388 (1983))). Or even “explicitly declared to be a substitute” for a Bivens claim. See Egbert, 596 U.S. at 501 (emphasis omitted). The judgment in Carlson may survive, but its reasoning does not.
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II.
The result is real tension and new constitutional problems where, as here, the Officials argue that the Federal Bureau of Prisons has eliminated the need for any Bivens inquiry by promulgating an administrative remedy program. That alternative process, the Officials conclude, means Cross cannot resort to Bivens. Presumably, the same result would follow in any action by a federal prisoner against federal officials for damages.
That might well be right. While the Supreme Court has declined to overrule Carlson, 6 it has said that “a new context arises when there are ‘potential special factors that previous Bivens cases did not consider.’” Egbert, 596 U.S. at 492 (quoting Ziglar v. Abbasi, 582 U.S. 120, 140 (2017)). The BOP’s administrative grievance process seems like a special factor creating a new Bivens context. 7 And none of the opinions in Carlson consi
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dered the BOP’s administrative remedies because special factors and alternative remedies were treated separately. 8 All suggesting that Carlson does not disturb the best reading of Egbert requiring courts to consider whether the BOP’s administrative remedies foreclose resort to Bivens. See Egbert, 596 U.S. at 501 (“[A] plaintiff cannot justify a Bivens extension based on ‘parallel circumstances’ with Bivens, Passman, or Carlson unless he also satisfies the ‘analytic framework’ prescribed by the last four decades of intervening case law.” (quoting Ziglar, 582 U.S. at 139)); see also id. at 491 (“‘[E]ven a single sound reason to defer to Congress’ is enough to require a court to refrain from creating such a remedy.” (alteration in original) (quoting Nestlé USA, Inc. v. Doe, 593 U.S. 628, 635 (2021) (plurality)). 9 That result is confirmed by the importance of the Executive’s independent authority under Article II to address alleged constitutional violations.
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A.
The Constitution of 1787 is framed to reflect broad and eternal principles 10 and did not endeavor to enact “a comprehensive code.” Stephen E. Sachs, Constitutional Backdrops, 80 Geo. Wash. L. Rev. 1813, 1821 (2012). Of design, it “does not answer, or even address, every important question of government, politics, law, or rights,” including how the document itself is to be implemented. Michael Stokes Paulsen, The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar’s Unwritten Constitution, 81 U. Chi. L. Rev. 1385, 1386 (2014) (book review). Instead, the Constitution hinges on preexisting rules emanating from other sources of law, positive, common, and natural. That leaves ample room for future state and federal actors to prescribe rules for its operation based on “a range of interpretive and policy choices.” Id.
As now framed, Bivens forces an examination of who decides what remedies are available when federal officials violate a constitutional right. For much of our Nation’s history, state governments provided state law causes of action consistent with their “coordinate responsibility to enforce the Constitution according to their regular modes of procedure,” DeVillier, 144 S. Ct. at 944 (alterations omitted) (quoting Howlett v. Rose, 496 U.S. 356, 367 (1990)), and the presumption of preexisting law working in concert with constitutional implementation. Bivens, Davis, and Carlson changed tack to place the federal courts in charge of setting the terms of constitutional remedies, disrupting the constitutional settlement that had placed states in the remedial driver’s seat. Immediately,
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the impact to both local and federal legislative authority became clear. See, e.g., Bivens, 403 U.S. at 418 (Burger, C.J., dissenting) (criticizing the majority for creating a cause of action for damages “at the price of impinging on the legislative and policy functions that the Constitution vests in Congress”); id. at 428–29 (Black, J., dissenting) (“[T]he fatal weakness in the Court’s judgment is that neither Congress nor the State of New York has enacted legislation creating such a right of action. . . . The task of evaluating the pros and cons of creating judicial remedies for particular wrongs is a matter for Congress and the legislatures of the States.”). Of less attention is the loss of Executive power caused by Bivens.
The President is no bystander to the execution of the laws and is sworn to “preserve, protect and defend the Constitution of the United States.” U.S. Const. art. II, § 1, cl. 8. That duty “imposes an obligation on all Presidents to safeguard the Constitution,” Saikrishna Prakash, The Executive’s Duty to Disregard Unconstitutional Laws, 96 Geo. L.J. 1613, 1629 (2008), and requires an “active role in precluding constitutional violations,” id. at 1628 n.55. The President’s duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, encompasses the setting of constitutional policy, the supervision of subordinates charged with carrying out that intent, and the balancing of the sensitive interests embedded in constitutional choice. See Prakash, supra, at 1632 (“The Faithful Execution duty arguably extends to the Constitution itself because the Supremacy Clause expressly makes the Constitution the law of the land.”). These, and other provisions, assign the President deep and demanding duties in implementing the guarantees of the Constitution, including the prohibitions in
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the Eighth Amendment. A role that sensibly includes monitoring the conduct of Executive Branch employees and addressing errors, omissions, and misconduct.
B.
Bivens poses a direct challenge to the authority of the Executive. When a federal court creates a federal remedy against an Executive employee that Congress has not presented to the President for signature, it is necessarily impinging upon “[t]he executive Power . . . vested in a President of the United States of America.” U.S. Const. art. II, § 1, cl. 1. The President’s duty to “take Care that the Laws be faithfully executed,” id. § 3, is why courts now consider administrative remedies in determining whether to recognize a Bivens extension. See, e.g., Egbert, 596 U.S. at 497–98; Malesko, 534 U.S. at 74. Remedial programs reflect the Executive’s judgment about how wrongful acts should be addressed, alleviated, and compensated.
That is the case here. Congress charged the President, and his subordinate the Attorney General, with implementing federal prison programs. See 18 U.S.C. §§ 4001(b)(1), 4042. In carrying out Congress’s commands, the President holds an independent duty to ensure that the Constitution’s guarantees are followed within federal prisons. 11 That duty includes efforts to prevent and remedy deliberate indifference to the medic
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al needs of federal prisoners. See §§ 4001(b)(2), 4042(a); see also 18 U.S.C. § 4005 (providing for funding and use of medical providers within federal prisons).
The President has answered that call in the BOP’s administrative remedy program.
See 28 C.F.R. §§ 542.10–542.19. That response deserves deference or, at a minimum, serious consideration and respect in determining whether a damages action under Bivens and Carlson should be recognized here. 12
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The Eighth Amendment binds all federal actors, and the President has a duty to ensure his subordinates comply with the Amendment’s demands. But when it comes to the specific means of implementing the Amendment, including remedies for violations, the Constitution leaves it to the states, Congress, and the Executive. Because the Officials’ argument concerning the effect of the BOP regulations was not addressed by
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the District Court, we rightly decline to consider the question. 13 But in an appropriate case, we should consider whether the administrative remedy program used by the BOP precludes relief under Carlson.