Arias v. Herzon

• Court: Court of Appeals for the First Circuit
• Decided: August 15, 2025
• Docket: 23-1618
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1618

ROBERT ARIAS,

Plaintiff, Appellant,

v.

NOAH A. HERZON, JUAN INFANTE, TY KURCHARSKI, CHRISTOPHER DAY, ADALBERTO GARCIA, MICHAEL BERNARD,

Defendants, Appellees,

US GOVERNMENT, US DRUG ENFORCEMENT ADMINISTRATION,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Landya B. McCafferty, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Thompson, Circuit Judges.

Jeremy D. Eggleton, with whom Orr & Reno, P.A., was on brief, for appellant.

Terry L. Ollila, Assistant United States Attorney, with whom Jane E. Young, United States Attorney, was on brief, for appellees. August 15, 2025 BARRON, Chief Judge. More than a half a century ago, in

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971), the Supreme Court of the United States

recognized an implied cause of action for damages against a federal

law enforcement officer for violating an individual's Fourth

Amendment rights. Is that remedy still available? The U.S.

District Court for the District of New Hampshire held that it is

not. This appeal requires us to decide whether that is right.

The District Court based its ruling on a 1988 amendment

to the Inspector General Act (IGA) that established an

administrative mechanism for lodging misconduct complaints against

federal law enforcement officers with the U.S. Department of

Justice's Office of the Inspector General.1 The District Court

concluded that, because of that legislative development, the

Fourth Amendment claims in this case arise in a new context

compared to Bivens. The District Court went on to conclude that

the IGA's "alternative remedial scheme" counseled against

extending the Bivens remedy to that new context. And, on that

basis, it held that the defendants -- U.S. Drug Enforcement Agency

(DEA) agents -- were entitled to summary judgment on the Fourth

The District Court stated that Congress created this remedy 1

through enacting the Inspector General Act of 1978, but Congress did not extend that statute's provisions to the Department of Justice until 1988. Compare Inspector General Act of 1978, Pub. L. No. 95-452, 92 Stat. 1101 (1978), with Inspector General Act Amendments of 1988, Pub. L. No. 100-504, 102 Stat. 2515 (1988).

- 3 - Amendment claims that the plaintiff -- Robert Arias -- brought

against them for excessive force and a failure to intervene to

prevent the use of that force.

We do not agree that Congress's more than

three-decades-old amendment to the IGA in and of itself makes the

context in which Arias's claims arise new compared to Bivens.

Thus, because we conclude that, the IGA aside, Arias's excessive

force claims arise in the same context as Bivens, the Bivens remedy

is available here just as it was there. Indeed, were we to conclude

otherwise, we would have to conclude, incongruously, that the

Bivens remedy has been a dead letter since the IGA's amendment,

even though the Supreme Court has reaffirmed the existence of that

remedy in the years after that now decades-old legislative

development.

Accordingly, we reverse the District Court's grant of

summary judgment to the defendants on Arias's excessive force

claims. However, we affirm the grant of summary judgment to the

defendants on his failure-to-intervene claims. We do so because

Arias fails to explain why, notwithstanding the distinct nature of

the misconduct that those claims allege, they arise in the same

context as Bivens. Nor does he explain why, insofar as those

claims do arise in a new context, the Bivens remedy should be

extended to it.

- 4 - I.

In 2017, Arias brought a suit for damages in the District

of New Hampshire against federal DEA agents. He sought the damages

for the physical and emotional harms allegedly caused by his

September 2016 arrest, which was undertaken pursuant to a warrant

and in a shopping center parking lot. He based the claims on the

implied cause of action for damages under the Fourth Amendment

that the Supreme Court recognized in Bivens. His complaint alleges

that some of the defendants violated his Fourth Amendment rights

through their use of excessive force, and that the others violated

his Fourth Amendment rights by failing to intervene to prevent

that excessive use of force.

The defendants moved for summary judgment based on what

was then the Supreme Court's most recent decision in the Bivens

line, Egbert v. Boule, 596 U.S. 482 (2022). They argued that,

under Egbert, Arias could not assert the implied cause of action

for damages that Bivens recognized as to any of his claims.

In Egbert, the Court described a two-step framework for

assessing when a Bivens remedy is available. Id. at 492. At the

first step, a court must determine whether the plaintiff's claims

arise in a "new context" compared to one of the cases in which the

Court already has recognized a damages remedy under Bivens. Id.

If the context is not new, then the inquiry ends and the Bivens

remedy may be asserted. Id.; Quinones-Pimentel v. Cannon, 85 F.4th

- 5 - 63, 70 (1st Cir. 2023). If the context is new, then a court must

move on to the second step. Egbert, 596 U.S. at 492. There, it

must determine whether there are "special factors counselling

hesitation" in extending the Bivens remedy to that new context.

Ziglar v. Abbasi, 582 U.S. 120, 136 (2017); see Egbert, 596 U.S.

at 492. If the court concludes that there is such a factor, then

it must conclude that the Bivens remedy is not available. Egbert,

596 U.S. at 492.

As to the first step, the defendants argued that Arias's

claims arise in a new context because, unlike the alleged

misconduct in Bivens itself, the misconduct that he alleged:

(1) was undertaken pursuant to a warrant, (2) occurred in a

publicly accessible parking lot, and (3) included a claim based on

a failure to intervene to prevent the excessive use of force. As

to the second step, the defendants argued that there are "special

factors counseling hesitation" that preclude extending the Bivens

remedy to that new context. They pointed to both the IGA's

administrative remedy and the availability of damages against the

United States under the post-Bivens amendments to the Federal Tort

Claims Act (FTCA).

The District Court granted the defendants' summary

judgment motion. It considered Arias's excessive force claims

separately from his failure-to-intervene claims.

- 6 - The District Court observed that Arias's excessive force

claims "share[d] many of the same background facts" with Bivens:

"an arrest made by federal narcotics agents investigating a

violation of federal drug laws that would have been routine but

for the alleged constitutional violations." It also recognized

that Arias's excessive force claims named the same category of

defendants as the claims in Bivens, even though Bivens involved

claims against agents from the Federal Bureau of Narcotics. The

functions of that agency, the District Court noted, had been

transferred to the DEA by the time that the excessive force

allegedly occurred. The District Court observed, too, that Arias's

excessive force claims alleged a violation of the same

constitutional right as the claims in Bivens, as the claims in

that case also alleged a violation of the Fourth Amendment right

against the use of excessive force.

In addition, the District Court expressly rejected the

defendants' assertions that Arias's excessive force claims arise

in a new context because the allegedly excessive force occurred

during an arrest that had been effectuated pursuant to a warrant

and in a shopping center parking lot. The District Court reasoned

that, although the search and arrest in Bivens were alleged to

have been carried out without a warrant and at the plaintiff's

home, those distinctions were not meaningful, and that "[a]t

- 7 - bottom" Arias's case "presents with facts virtually

indistinguishable from Bivens."

Nonetheless, the District Court determined that the

similarities between Arias's excessive force claims and the claims

in Bivens did not necessarily show that the context was the same

in the two cases. Rather, the District Court determined, based on

its understanding of Egbert and without the defendants having so

argued, that it also had to address a distinct possible basis for

Arias's excessive force claims arising in a new context compared

to Bivens -- namely, the availability under the IGA of an

administrative remedy.

The District Court observed that, under the IGA and 28

C.F.R. § 0.29c(c), Arias could file a misconduct report about the

defendants' conduct with the U.S. Department of Justice's Office

of the Inspector General and have his allegations investigated and

remedied administratively. By contrast, the District Court noted,

the plaintiff in Bivens did not have available to him that same

legislatively established means of administratively addressing the

misconduct that he alleged.

The District Court went on to determine that, under

Egbert, "the existence of the alternative remedial scheme is enough

to both place the case into a new context at the first step and to

prohibit expanding Bivens at the second step." The District Court

therefore determined that Arias could not assert an implied cause

- 8 - of action for damages under the Fourth Amendment as to his

excessive force claims. And it did so despite its conclusion

that -- setting the IGA aside -- those claims arise in the same

context as in Bivens itself.

The District Court further concluded that the presence

of the IGA's scheme is a special factor counseling hesitation in

extending the Bivens remedy to a new context. And, finally, the

District Court concluded that, because this remedial scheme is

itself "sufficient to require dismissal," there was no need to

decide whether the damages remedy against the United States that,

post-Bivens, the FTCA makes available to recover for uses of

excessive force by federal law enforcement officers "might also

foreclose Arias's Bivens claims."

The District Court next turned to Arias's

failure-to-intervene claims. With respect to the first step of

the analytical framework that Egbert described, the District Court

explained that "[r]egardless of whether a failure-to-intervene

claim is an alternative theory of liability or separate

constitutional violation, Bivens did not involve any theory that

the defendant officers' failure to intervene should subject them

to bystander liability." In the District Court's view, therefore,

Arias's failure-to-intervene claims arise in a new context

compared to Bivens. The District Court then explained that, as

with Arias's excessive force claims, "the existence of an

- 9 - alternative remedial scheme [in the form of the IGA] [wa]s

sufficient to place the case in a new context and foreclose

[Arias's] Bivens claim."

Accordingly, the District Court granted summary judgment

to the defendants on Arias's claims. Arias timely appealed.

II.

We start with Arias's challenge to the grant of summary

judgment to the defendants on his excessive force claims. Arias

contends that, the IGA aside, the District Court was right to treat

the claims as arising in the same context as Bivens. But he

contends that the District Court erred in ruling that, because of

the IGA, the claims necessarily arise in a new context compared to

Bivens. He thus argues that the District Court erred in granting

the defendants summary judgment on the claims. We agree.

To explain why, we first describe the analytical

framework for determining whether a Bivens remedy is available and

how its two steps, though distinct, relate to one another. We

then address how that framework applies to Arias's excessive force

claims.

A.

"In Bivens, the Court held that a Fourth Amendment

violation by federal agents, acting under color of governmental

authority, gave rise to a cause of action for money damages against

those agents in their individual capacities." González v. Vélez,

- 10 - 864 F.3d 45, 52 (1st Cir. 2017). The Court thereafter recognized

implied causes of action for damages under the Constitution against

federal officers in two other contexts.

First, in Davis v. Passman, the Court recognized a

damages action under the Fifth Amendment that permitted a former

congressional staffer to bring a sex discrimination claim against

a Congressperson. 442 U.S. 228 (1979). Second, during the very

next Term, in Carlson v. Green, the Court recognized a damages

action under the Eighth Amendment against federal prison officials

for the inadequate medical treatment of a prisoner. 446 U.S. 14

(1980).

Since Carlson, however, the Court has made clear that it

is skeptical that there can be implied causes of action. "Now

long past 'the heady days in which th[e] Court assumed common-law

powers to create causes of action,'" the Court has explained, it

has "come 'to appreciate more fully the tension between' judicially

created causes of action and 'the Constitution's separation of

legislative and judicial power.'" Egbert, 596 U.S. at 491 (first

quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001)

(Scalia, J., concurring); and then quoting Hernandez v. Mesa, 589

U.S. 93, 100 (2020)).

"At bottom," the Court has reasoned, "creating a cause

of action is a legislative endeavor." Id. It even has gone so

far as to question whether, under this newer view of implied causes

- 11 - of action, it would have decided Bivens, Davis, or Carlson the

same way. Id. at 502; Abbasi, 582 U.S. at 134.

Nonetheless, "[r]ather than dispense with Bivens

altogether," Egbert, 596 U.S. at 491, the Court merely has "made

clear that expanding the Bivens remedy is now a 'disfavored'

judicial activity." Abbasi, 582 U.S. at 135 (emphasis added)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Thus, the

Court has counseled that the "watchword is caution" when a

plaintiff's claim would require an extension of one of the implied

causes of action the Bivens line already recognizes. Egbert, 596

U.S. at 491 (quoting Hernandez, 589 U.S. at 101). And, based on

that "reluctan[ce] to create new causes of action," the Court has

consistently denied requests to extend the remedy recognized in

Bivens, Davis, or Carlson. Hernandez, 589 U.S. at 101-02 (emphasis

added).

At the same time, the Court has been careful to state

that Bivens itself is still good law. It therefore has made clear

that the cause of action recognized there remains available. See

Abbasi, 582 U.S. at 134 ("The settled law of Bivens in th[e] 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."); Egbert, 596 U.S. at 502 (declining to

overrule Bivens). Indeed, in the wake of the Court's invocation

of law enforcement's reliance on the "fixed principle" Bivens

- 12 - established, Abbasi, 582 U.S. at 134, courts have continued to

permit damages actions brought under Bivens. See, e.g., Snowden

v. Henning, 72 F.4th 237, 243–44 (7th Cir. 2023), cert. denied,

145 S. Ct. 137 (2024); Hicks v. Ferreyra, 64 F.4th 156, 166 (4th

Cir. 2023), cert. denied, 144 S. Ct. 555 (2024). Consistent with

that view, we have repeatedly acknowledged that the Bivens remedy

continues to exist. See DeMayo v. Nugent, 517 F.3d 11, 15 (1st

Cir. 2008) ("An individual may vindicate a proven violation of his

or her right to be free from unreasonable searches through a Bivens

action."); Quinones-Pimentel, 85 F.4th at 70 (explaining that

"[if] the case presents . . . no new context[,] . . . relief under

Bivens is available").

Accordingly, it is doubtful that a plaintiff may seek

damages under the Fourth Amendment against federal law enforcement

officers under a cause of action that a court would have to create.

But a plaintiff may do so pursuant to the cause of action that the

Court recognized in Bivens.2

2 We do not understand Egbert to suggest otherwise in stating that "recognizing a cause of action under Bivens is 'a disfavored judicial activity,'" Egbert v. Boule, 596 U.S. 482, 491 (2022) (emphasis added) (quoting Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)), given that in Abbasi and Hernandez, the Court emphasized that "expanding the Bivens remedy" was judicially disfavored. Abbasi, 582 U.S. at 135 (emphasis added); Hernandez, 589 U.S. at 101 ("We have stated that expansion of Bivens is a 'disfavored judicial activity.'" (cleaned up) (quoting Abbasi, 582 U.S. at 135)); see also Egbert, 596 U.S. at 491 (referring multiple times in the same paragraph to "creating" a damages remedy).

- 13 - B.

The first step of the two-step framework that Egbert

describes follows from the Court's decision to affirm the cause of

action that Bivens recognized, see Abbasi, 582 U.S. at 134 ("Bivens

does vindicate the Constitution by allowing some redress for

injuries . . . ."), but caution against the creation of any new

ones. At that step, as we noted at the outset, a court must

determine whether the plaintiff, in seeking damages under the

Bivens line, is requesting the creation of a new cause of action

or is merely asserting a cause of action that the Court already

has recognized.

How, then, is a court supposed to make that

determination? The answer turns on whether the plaintiff's claim

"presents 'a new Bivens context.'" Egbert, 596 U.S. at 492

(quoting Abbasi, 582 U.S. at 139).

The Supreme Court has made clear that the plaintiff's

damages action arises in a new context if the case is

"'meaningful[ly]' different from the three cases in which the Court

has implied a damages action." Id. (alteration in original)

(emphasis added) (quoting Abbasi, 582 U.S. at 139). Consistent

with this focus, the Court has emphasized that "[s]ome differences,

of course, will be so trivial that they will not suffice to create

a new Bivens context." Abbasi, 582 U.S. at 149 (emphasis added).

And we agree with the Seventh Circuit that the Supreme Court's

- 14 - requirement "[t]hat a difference must be 'meaningful' suggests

that some degree of variation will not preclude a Bivens remedy."

Snowden, 72 F.4th at 243–44.

In other words, it is most doubtful that Bivens, Davis,

and Carlson are tickets that may be used to reach a stop that is

not already on the existing Bivens line of authority. But those

tickets are not good only for those same three stops. They also

may be used for additional stops on the same line that Bivens,

Davis, and Carlson define.

What, then, makes a difference "meaningful," such

that -- again at this first step of the analysis -- the context is

"new"? The answer to that question is "a bit unclear,"

Quinones-Pimentel, 85 F.4th at 69, as the Supreme Court has not

provided an exhaustive accounting.

The Court has explained, however, that:

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.

Abbasi, 582 U.S. at 139–40 (emphasis added). It also has made

clear that when a case "involves a 'new category of defendants,'"

- 15 - that is a meaningful difference which renders the context new.

Egbert, 596 U.S. at 492 (quoting Malesko, 534 U.S. at 68).

We agree with the Seventh Circuit that, in the end, the

inquiry is a functional one. As it has explained, "the Court's

evolving Bivens guidance . . . suggest[s] that a difference is

'meaningful' if it might alter the policy balance that initially

justified the causes of action recognized in Bivens, Davis, and

Carlson." Snowden, 72 F.4th at 244. Thus, it has explained that

"[i]f a case involves facts or legal issues that would require

reweighing the costs and benefits of a damages remedy against

federal officials, then the difference is 'meaningful' because we

risk further encroachment on the legislative function rather than

simply applying controlling Supreme Court precedent." Id.

(emphasis added). It follows that if a case does not involve facts

or legal issues that would require such a reweighing, then the

difference does not in and of itself make the context new.

This functional approach accords with the fact that it

is only when a case presents a new context that we must proceed to

the second step of the analysis and ask whether "there are any

'special factors' counseling against extending Bivens" to that new

context. Quinones-Pimentel, 85 F.4th at 70 (emphasis added)

(quoting Egbert, 596 U.S. at 492). That question need not be asked

if the context is one in which the Supreme Court already has

performed the required "[]weighing" in recognizing -- and then

- 16 - reaffirming -- the implied causes of action in Bivens, Davis, or

Carlson. Snowden, 72 F.4th at 244. In a context of that sort,

the Court already has asked and answered whether there is any

"indicat[ion] that the Judiciary is at least arguably less equipped

than Congress to 'weigh the costs and benefits of allowing a

damages action to proceed.'" Egbert, 596 U.S. at 492 (quoting

Abbasi, 582 U.S. at 136). And, as a lower court, we may not

second-guess that determination once the Court has made it, which

is why we have explained that "[i]f the case presents no meaningful

differences (and thus no new context), the analysis ends there and

relief under Bivens is available."3 Quinones-Pimentel, 85 F.4th

at 70 (emphasis added).

3 At oral argument, the defendants argued based on González v. Vélez, 864 F.3d 45 (1st Cir. 2017), that we could reach step two of the Bivens inquiry even if the case did not present a new context. They apparently rested that contention on our statement in that case that "even if we assume[d] for argument's sake that the context [was] substantially the same, the plaintiffs [would] hit a roadblock at the next step of the analysis" regarding alternative remedies. Id. at 53. But the plaintiffs there were attempting to use the cause of action recognized in Davis v. Passman, 442 U.S. 228 (1979), to raise a claim that "b[ore]" only a "superficial similarity" to Davis itself. González, 864 F.3d at 53. In assuming that the claims arose in "substantially the same context," we were merely assuming that they were "substantially" similar enough to warrant comparison to Davis in the first place -- not that the contexts were, in fact, the same. Thus, we proceeded to the second step of the analysis only because it was clear that the context was new. See id. at 52 (explaining that the second step alternative remedies inquiry applies only "[o]nce it is determined that the context is new").

- 17 - C.

All that said, Egbert does note that the two-step

analysis may in some cases present only a single question. Egbert,

596 U.S. at 492 ("While our cases describe two steps, those steps

often resolve to a single question: whether there is any reason to

think that Congress might be better equipped to create a damages

remedy."). The very factor that may make a context new may be the

"special factor counseling hesitation" in extending the cause of

action. See id. ("[W]e have identified several examples of new

contexts -- e.g., a case that involves a 'new category of

defendants,' -- largely because they represent situations in which

a court is not undoubtedly better positioned than Congress to

create a damages action." (quoting Malesko, 534 U.S. at 68)); cf.

Snowden, 72 F.4th at 243 n.3 ("[S]ometimes the Court's cases do

not explicitly address the 'new context' inquiry because they do

not need to -- where, for example, the case raises a claim under

a different constitutional provision (like the First Amendment) or

presents an obviously distinct factual setting (like the

military)."). Relatedly, the special factor that counsels against

extending the Bivens remedy to a new context also may be a factor

that in and of itself makes the context new. In other words, in

some cases the same factor may do double duty. Importantly,

however, the Court was careful to observe that the two-step inquiry

- 18 - "often" will reduce to a single question, Egbert, 596 U.S. at 492

(emphasis added), rather than that it always does so.

III.

We are now well situated to address the excessive force

claims under the first step of the analysis described in Egbert.

With respect to that step, Arias emphasizes that, like the

plaintiff in Bivens, his excessive force claims seek damages under

the Fourth Amendment for "unreasonable force . . . employed in

making [his] arrest." Bivens, 403 U.S. at 389. He also emphasizes

that, like the plaintiff in Bivens, he names line law enforcement

officers as defendants in those claims.

Arias acknowledges that the defendants here were

employed by the DEA at the time of the alleged misconduct, while

the defendants in Bivens were employed by the Federal Bureau of

Narcotics. He contends that this difference is not meaningful,

though, because the DEA is the successor to that now-defunct

agency. See United States v. Feola, 420 U.S. 671, 684 n.18 (1975).

Arias also points out that the "judicial guidance" as to

what constitutes excessive force under the Fourth Amendment is at

least as clear now as it was at the time of Bivens. See Abbasi,

582 U.S. at 140; see also Graham v. Connor, 490 U.S. 386, 395-97

(1989) (outlining the relevant inquiry); Cnty. of Los Angeles v.

Mendez, 581 U.S. 420, 427 (2017) (noting that the "case law sets

forth a settled and exclusive framework for analyzing whether the

- 19 - force used in making a seizure complies with the Fourth

Amendment"); Lachance v. Town of Charlton, 990 F.3d 14, 20 (1st

Cir. 2021); O'Brien v. Town of Bellingham, 943 F.3d 514, 530-31

(1st Cir. 2019). So, again, he argues, his excessive force claims

do not arise in a new context.

Of course, "even a modest extension is still an

extension." Abbasi, 582 U.S. at 147. Thus, despite the many

parallels between Arias's excessive force claims and the claims in

Bivens, we must remain alert for any "meaningfully new factual

circumstances." Quinones-Pimentel, 85 F.4th at 70.

The defendants highlight three factual circumstances

that they argue -- either when taken together or considered on

their own -- render the context here new. See id. at 72 n.6

(concluding that multiple "differences, collectively, [can]

distinguish [a] case meaningfully from Bivens"). The three

circumstances are: the presence of a warrant, the public location

of the arrest, and the presence of a post-Bivens alternative remedy

via the IGA.4

We start with the first two circumstances even though

the District Court relied solely on the third in finding the

4 The defendants also contend that Arias's "inclusion of a failure-to-intervene claim" counts among the "factors" that place his case into a new context. But they identify no support for the notion that this separate claim could bear on whether Arias's excessive force claims present a new context. So, we analyze whether that claim presents a new context in Part IV.

- 20 - context here new. Reviewing de novo, Quinones-Pimentel, 85 F.4th

at 68, we are not persuaded that either one of these two

circumstances shows that Arias's excessive force claims arise in

a new context. We then consider the third circumstance -- the

presence of the IGA's administrative remedy. Reviewing de novo,

id., we conclude that this circumstance also fails to make the

context new.

As to their possession of a warrant, the defendants

direct our attention to Abbasi. The Court explained there that a

"case might differ in a meaningful way because of . . . the

statutory or other legal mandate under which the officer was

operating." Abbasi, 582 U.S. at 139-40. The defendants point out

that, when assessing the reasonableness of a use of force, courts

must consider, among other factors, the severity of the crime.

See Graham, 490 U.S. at 396. They go on to contend that, when a

warrant is issued, the severity of the crime depends "not solely

on the judgment of the officer on the scene, but on the probable

cause determination of a neutral and detached magistrate." They

therefore contend that we must conclude that law enforcement

officers who use force while acting pursuant to a warrant operate

under a different legal mandate than do law enforcement officers

who use such force while not acting pursuant to a warrant. And

so, the defendants argue, because the officers in Bivens did not

- 21 - have a warrant, Bivens, 403 U.S. at 389, the officers here were

operating under a different legal mandate.

We are not convinced. Arias alleges that the defendants

violated his Fourth Amendment rights by using excessive

force -- not by conducting an unreasonable search or merely

effecting an unlawful seizure. While "the right to make an arrest

or investigatory stop necessarily carries with it the right to use

some degree of physical coercion or threat thereof to effect it,"

Graham, 490 U.S. at 396, it plainly does not provide a "legal

mandate" to use excessive force, see Abbasi, 582 U.S. at 139-40.

That an arrest warrant requires a "neutral and detached

magistrate" to determine probable cause also does not show that

the officers here were operating under a different legal mandate.

The judicial determination to grant an arrest warrant was not a

determination that excessive force may be used to execute that

warrant or, quite obviously, that the force in fact used was not

excessive. Nor was that judicial determination an assessment of

the severity of the crime to which the warrant pertains. It was

an assessment of whether there was a sufficient basis for an

arrest, not of the underlying crime's severity.

That Congress could think that an arrest with a warrant

differs from an arrest without one is therefore of little relevance

here. The use of excessive force in effectuating an arrest is

equally excessive regardless of whether an arrest is made pursuant

- 22 - to a warrant. We thus do not see how the presence of a warrant

here constitutes a meaningful difference from Bivens, given the

nature of the claims at issue. That is especially so because

nothing in Bivens appears to have turned on the officers not having

a warrant when using the allegedly excessive force. See generally

Bivens, 403 U.S. 388. Nor are we alone in so holding. See Snowden,

72 F.4th at 247; Logsdon v. U.S. Marshal Serv., 91 F.4th 1352,

1357 (10th Cir. 2024).

The cases relied on by the defendants -- and the

dissent -- do not persuade us otherwise. Those cases involved

claims targeting unreasonable searches and other factors that

clearly gave rise to a new context compared to Bivens. See Cain

v. Rinehart, No. 22-1893, 2023 WL 6439438, at *3-4 (6th Cir.

July 25, 2023) (unreasonable search and new category of

defendant); Quinones-Pimentel, 85 F.4th at 72 (same); Annappareddy

v. Pascale, 996 F.3d 120, 135-36 (4th Cir. 2021) (same, along with

a different injury).

Cienciva v. Brozowski, No. 3:20-CV-2045, 2022 WL 2791752

(M.D. Pa. July 15, 2022), which the defendants also cite, did

conclude that the presence of a warrant is a meaningful difference

that places an excessive force claim into a new context. Id. at

*9-11. The claim there, however, also involved a new category of

defendant, which would squarely place the case into a new context.

Id.; see Egbert, 596 U.S. at 492. But, although the district court

- 23 - in that case did not deem the context new on that basis, we do not

find the reasoning in Cienciva convincing -- for all the reasons

we already have given -- insofar as the district court concluded

that the warrant on its own made the context for an excessive force

claim new.

The dissent, for its part, invokes Cantú v. Moody, 933

F.3d 414, 423 (5th Cir. 2019), to show that the Fifth Circuit has

"held that the existence of a warrant amounts to a meaningful

difference from Bivens." But that case did not involve an argument

that the presence of a warrant independently rendered the context

new. Nor did the Fifth Circuit hold there what the dissent asserts

that it held. It merely observed that the "claim [in that case]

involve[d] different conduct" than in Bivens because the claim was

premised on the allegation that the defendant "falsified

affidavits" rather than that "the officers entered his home without

a warrant or violated his rights of privacy." Id. The Fifth

Circuit thus concluded that the context was new because the extent

of judicial guidance "differs across the various kinds of Fourth

Amendment violations" and the plaintiff's claims involved

"different officers from a different agency." Id.

So, while our dissenting colleague accuses us of

creating a circuit split, the dissent would hardly avoid one.

Under the approach that the dissent favors, our circuit would be

directly at odds with the Seventh and Tenth Circuits.

- 24 - B.

As to the excessive force having allegedly occurred here

in a publicly accessible parking lot, it is true that the alleged

misconduct in Bivens occurred at a private home. It is also true

that the place where an alleged Fourth Amendment violation occurs

can be a meaningful difference. See Hernandez, 589 U.S. at 103.

But the location where the misconduct occurred here -- the parking

lot of a privately owned shopping center -- does not trigger the

kind of acute separation of powers concerns that made the

"cross-border" context at issue in Hernandez meaningfully

different from the context of Bivens itself. Id.

Moreover, the fact that the allegedly excessive force

took place in a parking lot rather than at a private home does not

risk "alter[ing] the policy balance that initially justified the

cause[] of action recognized in Bivens" as "a separation-of-powers

matter." Snowden, 72 F.4th at 244, 247. As the Seventh Circuit

well put it in considering a claim of excessive force that

allegedly occurred in the lobby of a hotel, "[h]otel or home,

warrant or no warrant -- the claims here and in Bivens stem from

run-of-the-mill allegations of excessive force during an arrest."

Id. at 247; see also id. (distinguishing the excessive force claim

from one that allegedly occurred "in a government facility").

We also do not see how the location, when combined with

the fact that the arrest is alleged to have been made pursuant to

- 25 - a warrant, makes the context here meaningfully different from the

context in Bivens. Nor do the defendants explain why, when these

two features are considered together, their interaction would

require a different conclusion than when either is considered

alone.

The dissent does correctly note that in Byrd v. Lamb,

990 F.3d 879, 882 (5th Cir. 2021), the Fifth Circuit concluded

that the fact that the "case arose in a parking lot, not a private

home as was the case in Bivens," was a meaningful difference. But

because the Fifth Circuit provided no explanation for why that

difference would be meaningful, we do not find its decision

persuasive.

The dissent cites Mejia v. Miller, 61 F.4th 663, 668

(9th Cir. 2023), for the proposition that "challenged conduct

outside the home amounts to a meaningful difference from Bivens."

The challenged conduct there, however, was alleged to have

"occurred on public lands managed by" a new category of

defendants -- officers from the Bureau of Land Management -- who

were also operating under a different legal mandate. Id. So, the

public location of that violation -- unlike the location at issue

in the case before us -- does appear to have raised separation of

powers concerns of the kind that the Supreme Court has suggested

are meaningful.

- 26 - Once again, moreover, our dissenting colleague fails to

acknowledge that we would hardly avoid a circuit split if we were

to affirm the ruling below. Given the holdings by the Seventh

Circuit in Snowden, 72 F.4th at 247, and the Tenth Circuit in

Logsdon, 91 F.4th at 1357, the dissent's favored approach would

deepen one.

The dissent does invoke Florida v. Jardines, 569 U.S. 1

(2013). But that case does not show that the location of the

alleged misconduct here makes the context new.

Unlike Bivens and this case, Jardines involved an

alleged search, not a claim of excessive force. See id. at 6-7.

The distinction is significant. An excessive force claim takes

aim at the extent of the force used against the person rather than

the extent to which an expectation of privacy has been infringed

or a trespass has occurred. So, Payton v. New York, 445 U.S. 573

(1980), and United States v. Karo, 468 U.S. 705 (1984), are no

different from Jardines in that they also implicate concerns about

privacy rather than excessive force. And because

Quinones-Pimentel, 85 F.4th at 71-72, like Jardines, involved an

unlawful search, the dissent's reliance on it is similarly

misplaced.

That there may be a greater likelihood of other people

being present in a parking lot may bear on the privacy interests

involved. But we do not see how, in its nature, the physical

- 27 - location being a parking lot on its own bears on the reasonableness

of the level of force used, such that the involvement of this

location risks "alter[ing] the policy balance that initially

justified the cause[] of action recognized in Bivens" as "a

separation-of-powers matter." Snowden, 72 F.4th at 244, 247.

Insofar as our focus is on the nature of the allegedly

unconstitutional conduct alleged, we also do not see how allowing

a damages action here would risk any more "disruptive intrusion"

into the "functioning of other branches" than Bivens itself already

permits. Abbasi, 582 U.S. at 140. The right asserted here is the

same as that asserted in Bivens -- a right under the Fourth

Amendment against the excessive use of force by officers at the

successor agency in Bivens.

C.

We come, then, to the final feature of this case that

the defendants contend makes the context in which Arias's excessive

force claims arise "meaningfully different" -- and so new. That

feature, on which the District Court also relied, is the

post-Bivens enactment in 1988, through an amendment to the IGA, of

an administrative mechanism for lodging a complaint about

misconduct by a federal law enforcement officer. For the reasons

explained below, we are not persuaded that this legislative

development renders this context new, even accounting for the other

supposedly distinguishing factual circumstances addressed above.

- 28 - 1.

To start, we recognize that the District Court

understood Egbert to require the conclusion at step one that the

IGA's administrative remedy rendered the context for Arias's

excessive claims new. We also recognize that Egbert held that a

plaintiff could not assert a Fourth Amendment claim for damages

against a federal Border Patrol agent for the use of excessive

force in part because the existence of an administrative process

for lodging misconduct complaints against the agent was a "special

factor" that counseled against authorizing the Bivens cause of

action there. See Egbert, 596 U.S. 493-94, 497-98.

The Supreme Court expressly noted in Egbert, however,

that, in so holding, it was addressing only the second step of the

Bivens analysis, not the first. Id. As the Supreme Court

explained, the Ninth Circuit had held below that the Fourth

Amendment claims in that case arose in a new context. Id. at 494.

Moreover, the Ninth Circuit had not deemed the context

new because there was an administrative remedial scheme for lodging

complaints against federal Border Patrol agents. Boule v. Egbert,

998 F.3d 370, 387 (9th Cir. 2021), rev'd on other grounds, 596

U.S. 482 (2022). It had done so only for other reasons. Id. In

fact, the defendants had not invoked that administrative scheme as

a reason to conclude that no Bivens remedy was available. See

Egbert, 596 U.S. at 497 n.3. The Ninth Circuit then went on to

- 29 - hold, at the second step of the Bivens analysis, that,

notwithstanding the existence of other alternative remedies,

Egbert, 998 F.3d at 387, 391-92, there were no special factors

that counseled against extending the Bivens remedy to the new

context. So, in seeking review in the Supreme Court, the

defendants were challenging only that latter aspect of the Ninth

Circuit's holding, which they did by for the first time invoking

the presence of the administrative remedy. See Egbert, 596 U.S.

at 497 n.3.

As a result, in Egbert, the Supreme Court held only that,

at the second step of the analysis, the administrative remedy there

counseled against extending the Bivens remedy to a new context.

It did not hold that the administrative remedy in and of itself

made the context new. Nor did it have occasion to decide whether

such a remedy in and of itself ever could render a context new.

2.

Even though the precise holding of Egbert does not

require us to conclude that the IGA's administrative remedy makes

the context here new, we still must decide whether such a

conclusion is warranted on some other basis. But we note up front

that there is good reason for us to be wary of arguments that there

is.

The Supreme Court has been clear that "it is this Court's

prerogative alone to overrule one of its precedents." State Oil

- 30 - Co. v. Khan, 522 U.S. 3, 20 (1997). It is thus of some significance

that, although Congress amended the IGA to create the

administrative remedy that supposedly spelled Bivens's demise

nearly forty years ago, see Inspector General Act Amendments of

1988, Pub. L. No. 100-504, 102 Stat. 2515 (1988), the Supreme Court

has repeatedly and recently declined to overrule Bivens, see, e.g.,

Abbasi, 582 U.S. at 134 (reaffirming the "continued force" of

Bivens within its existing context and observing that "no

congressional enactment has disapproved of" the three original

Bivens decisions). And, in doing so, the Court has recognized

that the "undoubted reliance" on "the settled law of Bivens in

th[e] common and recurrent sphere of law enforcement" is itself a

"powerful reason[] to retain it in that sphere." Id.; see also

id. (noting that Bivens not only "vindicate[s] the Constitution by

allowing some redress for injuries," but also "provides

instruction and guidance to federal law enforcement officers going

forward"); cf. Dickerson v. United States, 530 U.S. 428, 443 (2000)

(declining to overrule Miranda v. Arizona, 384 U.S. 436 (1966), in

part because "Miranda has become embedded in routine police

practice to the point where the warnings have become part of our

national culture").

If we were to conclude that the IGA makes the context

here new, however, then we would have to endorse the view that the

remedy Bivens recognized is no longer available, notwithstanding

- 31 - the Court's determination that there are "powerful reasons to

retain it." Abbasi, 582 U.S. at 134. And we would also have to

believe that this state of affairs has prevailed for nearly four

decades, but that no one, including the Supreme Court, has noticed.

For, if the original Bivens cause of action were no longer

available due to the IGA's amendment in 1988, then there would

have been no need for the Court to have considered the need for

Bivens's extension in cases in which similar administrative

complaint mechanisms were available. Yet, the Court has done so

nonetheless. See Hernandez, 589 U.S. 93; Egbert, 596 U.S. at 497

(considering whether to "superimpos[e]" a Bivens remedy onto an

administrative remedy that allows "[a]ny person[]" to "lodge a

complaint" with the Department of Homeland Security's Office of

Inspector General (quoting 8 C.F.R. § 287.10(b))).5 And it would

be hard to understand why in 2017 the Court thought it important

to account for "the undoubted reliance" on the "settled law of

Bivens" by "federal law enforcement officers going forward" if it

The dissent asserts that the length of time that has passed 5

since the IGA's adoption provides no reason to be skeptical that it spelled the end of Bivens seemingly for all claims against federal law enforcement officers. The dissent asserts that this passage of time reveals only that Congress has not seen fit to review the silently buried Bivens cause of action during that time. But this misapprehends our reason for emphasizing the vintage of the IGA. During that time, the Court has itself repeatedly reaffirmed Bivens, which was a curious thing for it to be doing if that remedy was already a thing of the past.

- 32 - were evident by then that the Bivens remedy had been unavailable

for nearly three decades. Abbasi, 582 U.S. at 134.

We do not lightly ascribe to the Supreme Court a

misapprehension about the continuing vitality of its own

precedents. And, as a lower court, we are required to follow the

Court's precedents, not treat them as but shells of their former

selves. See Agostini v. Felton, 521 U.S. 203, 237 (1997) ("[W]e

do not hold[] that other courts should conclude our more recent

cases have, by implication, overruled an earlier precedent.").

All that said, the Court has not been presented with the

precise question before us today: Does the IGA's administrative

mechanism for lodging complaints place a claim that otherwise

arises in the same context as Bivens in a new one? So, we must

look closely at the relevant precedents, including Egbert itself,

to determine whether they require the District Court's conclusion

that Bivens, in essence, has been long dead. For the reasons we

next explain, we are not persuaded that they do.

3.

The Court has directly considered, in applying the first

step of the analysis, how an alternative remedy bears on whether

a context is new in exactly one case: Abbasi. There, the

plaintiffs, like the plaintiff in Carlson, alleged "prisoner

mistreatment" resulting in "compelling" injury. 582 U.S. at 147.

- 33 - Abbasi reaffirmed the viability of the damages remedy

that Carlson recognized. Id. at 134, 140. But the Court then

concluded, at the first step of the analysis, that the context was

new. Id. at 149.

Abbasi did so with reference, in part, to remedies "that

were not considered in the Court's previous Bivens cases." Id. at

148. Thus, it does make clear that previously unconsidered

alternative remedies may be relevant at the first step, and it

thereby accords with its own instruction that a "case might differ

in a meaningful way because of . . . the presence of potential

special factors that previous Bivens cases did not consider." Id.

at 139-40 (emphasis added).

Nonetheless, Abbasi did not suggest that the mere

existence of a previously unconsidered administrative mechanism

for lodging misconduct complaints made the context new. And that

was so even though, by the time of Abbasi, such a previously

unconsidered administrative mechanism -- the Administrative Remedy

Program (ARP), 28 C.F.R. § 542 -- was in place.

The Abbasi Court was well aware, moreover, of the ARP,

which it knew had not been considered in Carlson and which provided

that inmates could "file[]" "grievances" regarding "an issue which

relates to any aspect of their confinement[]." Malesko, 534 U.S.

at 74 (quoting 28 C.F.R. § 542.10 (2001)). Indeed, in Malesko,

the Court had explicitly relied on the ARP's remedy in declining

- 34 - to extend the Carlson remedy to a new class of defendants at the

second step of the analysis. Id. at 74. And Abbasi even cited to

that portion of Malesko's analysis repeatedly, see 582 U.S. at

136, 137, 140, 145, including in its discussion at the first step

of whether the context was new, id. at 139.

At the first step, however, Abbasi identified meaningful

differences other than the presence of the ARP. Specifically, the

Court first pointed to the fact that the plaintiffs in Abbasi,

unlike the plaintiff in Carlson (who alleged under the Eighth

Amendment that prison officials' provision of inadequate medical

care resulted in acute harm, see Carlson, 446 U.S. at 16 n.1),

alleged that a warden's supervisory failures resulted in

continuing violations under the Fifth Amendment, see 582 U.S. at

148. The Court then also observed that, seemingly in consequence

of this difference, the plaintiffs in Abbasi had remedies other

than damages that the plaintiff in Carlson did not. And the Court

identified those remedies as being only a writ of habeas corpus,

"an injunction requiring the warden to bring his prison into

compliance with [prison] regulations[,] . . . or some other form

of equitable relief." Id.

Finally, Abbasi pointed to "legislative action" that

Carlson had not considered as a meaningful difference. Id. Here,

the Court focused on the enactment of the Prison Litigation Reform

Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA),

- 35 - which had mandated among other things that prisoners avail

themselves of the ARP before filing suits against prison

officials.6 Indeed, in referencing the PLRA, the Court in Abbasi

explicitly observed that in an earlier case it "ha[d] said in dicta

that the [PLRA's] exhaustion provisions would apply to Bivens

suits." Abbasi, 582 U.S. at 148-49; see Porter v. Nussle, 534

U.S. 516, 524 (2002) ("Thus federal prisoners suing under Bivens

v. Six Unknown Fed. Narcotics Agents, must first exhaust inmate

grievance procedures just as state prisoners must exhaust

administrative processes prior to instituting a § 1983 suit."

(citation omitted)). But Abbasi did not suggest that the ARP in

and of itself made the context there new. It explained that

because the PLRA addressed when and how suits may be brought

against prison officials without providing a damages remedy, that

statute arguably "suggest[ed that] Congress chose not to extend

the Carlson damages remedy to cases involving other types of

prisoner mistreatment." Abbasi, 582 U.S. at 149, 148 (emphasis

6 Although the ARP existed at the time that Carlson was decided, Koprowski v. Baker, 822 F.3d 248, 256 (6th Cir. 2016) (citing 44 Fed. Reg. 62248-51 (Oct. 29, 1979)), it was a remedy that Congress had not "affirmatively . . . requested or required." McCarthy v. Madigan, 503 U.S. 140, 149 (1992) (noting that the ARP was "neither enacted nor mandated by Congress"). After Carlson, however, Congress required the exhaustion of that administrative remedy through the PLRA. See Woodford v. Ngo, 548 U.S. 81, 8485 (2006).

- 36 - Accordingly, while Abbasi addressed the import of

alternative remedies at the first step, it did not do so in a way

that suggests that an administrative remedy like the IGA's in and

of itself makes a context new, such that the presence of that

remedy would render the context new even in a case in which the

plaintiff alleged the exact same type of prisoner mistreatment as

the plaintiff in Carlson alleged. In fact, despite the presence

in Abbasi of the previously unconsidered congressionally blessed

ARP, the Court focused its new-context analysis in that case only

elsewhere.

4.

Of course, there is only so much insight that can be

gleaned from what the Court did not do in Abbasi. But the fact

that Abbasi did not rely on the ARP at the first step would be

less worthy of note if the Court had elsewhere -- even

once -- relied on the introduction of such an administrative remedy

to find a context new. As it turns out, though, we have not come

across any case in which the Court has done so. Nor do the

defendants identify one.

The dissent seems to suggest that it has found a few

such cases. The only one that the dissent identifies that in fact

considers alternative remedies in applying the first step, though,

is Abbasi itself. Otherwise, to support its contention that, under

Supreme Court precedent, the presence of an alternative remedial

- 37 - structure is sufficiently meaningful to create a new context, the

dissent relies exclusively on the Court's statements regarding

step two. See Egbert, 596 U.S. at 493 ("If there are alternative

remedial structures in place, 'that alone,' . . . is reason enough

to 'limit the power of the Judiciary to infer a new Bivens cause

of action.'" (emphasis added) (quoting Abbasi, 582 U.S. at 137));

Goldey v. Fields, 606 U.S. 942, 944-45 (2025) (explaining that the

fact that "'an alternative remedial structure' already exists" is

a "'special factor[]' counsel[ing] against . . . extending Bivens"

(emphasis added)); Malesko, 534 U.S. at 70, 74 (listing the

presence of alternative remedies as one "reason[] that

foreclose[s] [Bivens's] extension here" (emphasis added)); Bush v.

Lucas, 462 U.S. 367, 388 (1983) (referring to "whether an elaborate

remedial system . . . should be augmented by the creation of a new

judicial remedy" (emphasis added)).

We do not see how the language about step two that the

dissent relies on demonstrates that the presence of an alternative

remedial structure is sufficiently meaningful to create a new

context at step one. The Court reiterated just this past Term

that we only reach step two "if" we first conclude that "the case

is 'different in a meaningful way' from the cases in which th[e]

Court has recognized a Bivens remedy" and thus "presents 'a new

Bivens context.'" Goldey, 606 U.S. at 944 (quoting Abbasi, 582

U.S. at 139); see id. (explaining that "[i]f [the case presents a

- 38 - new context], we then ask whether there are 'special factors'"

that counsel against extending Bivens to that new context (emphasis

added)).

The dissent does appear to take issue with the need for

us to adhere to the two-step framework, seemingly suggesting that

what once were two steps now are better understood as one. It

does so, apparently, based on the idea that any factor that would

counsel hesitation in extending Bivens to a new context is

necessarily also a factor that makes a context new. But, insofar

as the dissent finds support for that position in Egbert, we fail

to see how it is there.

Egbert was itself decided at the second step of the

analysis. And, our own precedents do not comport with such a

reading of Egbert. See Quinones-Pimentel, 85 F.4th at 70

(explaining, after Egbert, that "[i]f the case presents no

meaningful differences (and thus no new context), the analysis

ends there and relief under Bivens is available").

True, Egbert did state, as we have noted, that the "two

steps . . . often resolve to a single question: whether there is

any reason to think that Congress might be better equipped to

create a damages remedy." 596 U.S. at 492 (emphasis added).

Egbert also characterized its prior "expla[nation] that a new

context arises when there are 'potential special factors that

previous Bivens cases did not consider'" as an "example" of how

- 39 - the "two steps . . . often" merge. Id. (quoting Abbasi, 582 U.S.

at 140).

Egbert supported that proposition, though, by citing

Abbasi. And that case simply instructs that the presence of

"potential special factors that previous Bivens cases did not

consider" is one way in which "[a] case might differ in a

meaningful way." Abbasi, 582 U.S. at 139-40 (emphasis added).

Moreover, in the paragraph preceding that statement, the

Court in Egbert reiterated that "whether [a] case presents 'a new

Bivens context'" depends on whether it is "'meaningful[ly]'

different from the three cases in which the Court has implied a

damages action." Egbert, 596 U.S. at 492 (alteration in original)

(quoting Abbasi, 582 U.S. at 139). Thus, while Egbert observed

that "a new context arises when there are 'potential special

factors that previous Bivens cases did not consider,'" id. (quoting

Abbasi, 582 U.S. at 140), we do not understand the Court to have

impliedly rejected Abbasi's core premise that a "potential special

factor that previous Bivens cases did not consider" makes a context

new only if that factor makes the context different in a way that

is meaningful. See Nat'l Pork Producers Council v. Ross, 598 U.S.

356, 373-74 (2023) (emphasizing that the Court's opinions cannot

"always . . . be parsed as though . . . dealing with the language

of a statute" and "must [instead] be read with a careful eye to

context" (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 341

- 40 - (1979))). In that respect, Egbert's "example" accords with the

general requirement that, to reach step two, the context must be

"'meaningful[ly]' different" from the one in which the Bivens

remedy has been recognized by the Court. Id. (alteration in

original) (quoting Abbasi, 582 U.S. at 139); see also Goldey, 606

U.S. at 944; Quinones-Pimentel, 85 F.4th at 70.

Consistent with this understanding of Egbert, we

emphasize that when a "potential special factor[] that previous

Bivens cases did not consider" shows that the case is meaningfully

different, that same "special factor[]" will almost always counsel

against allowing the damages remedy. 596 U.S. at 492 (quoting

Abbasi, 582 U.S at 140). But, conversely, if a "potential special

factor[] that previous Bivens cases did not consider" fails to

show the case is meaningfully different, then the case does not

present a new context and the plaintiff may use the existing Bivens

cause of action. Id. (quoting Abbasi, 582 U.S. at 140).

After all, in that latter type of case, a court need not

"create a damages remedy." Id. It need only apply the one that

the Court already has recognized. Accordingly, Egbert's "single

question" could not be presented. Id.

Thus, we do not understand Egbert, in observing that the

"two steps . . . often resolve to a single question," to have

relieved courts of their duty to engage in the general new-context

inquiry. Indeed, in the sentences surrounding that observation in

- 41 - Egbert, the Court makes clear that its focus is on whether a court

may "fashion" or "creat[e] . . . a new judicial remedy." Id. at

493 (quoting Bush, 462 U.S. at 388). And, in a context that does

not meaningfully differ from the existing Bivens cases, a court

would not be "infer[ring]," "fashion[ing]," or "creat[ing]" a

"new" "Bivens cause of action," id., because a Bivens cause of

action plainly already exists, id. at 493 n.2 (noting that there

are contexts "in which a Bivens remedy is generally available"

(quoting Hui v. Castaneda, 559 U.S. 799, 807 (2010))). So, the

inquiry into whether there is reason to hesitate before entering

that uncharted ground need not be undertaken.

For these reasons, we cannot agree with the dissent's

seeming suggestion that Egbert's "single question" discussion

itself requires that we bypass the inquiry in this case as to

whether the IGA's mechanism for lodging complaints

administratively constitutes a meaningful difference from Bivens.

Even if that scheme provides a reason not to extend the Bivens

remedy, it does not follow that the scheme constitutes the kind of

meaningful difference that gives rise to a new context. And we

are especially reluctant to conclude otherwise, when doing so

necessarily would spell Bivens's demise in every context involving

a Fourth Amendment claim.

The dissent also finds support for its position in the

Court's latest word on Bivens -- Goldey v. Fields, 606 U.S. 942

- 42 - (2025). But we do not find that support there any more than we

find it in Egbert.

In Goldey, the Court reiterated that "[t]o determine

whether a Bivens claim may proceed, the Court has applied a

two-step test." Id. at 944. Then, in accord with the undisputed

positions of the parties and the Court of Appeals in that case,

see Fields v. Fed. Bureau of Prisons, 109 F.4th 264, 270 (4th Cir.

2024) ("Fields concedes that this case arises in a new context.

We are thus faced solely with step two . . . ."), the Court

explained that the "case arises in a new context." Goldey, 606

U.S. at 944; see also id. at 943 (explaining that an "Eighth

Amendment excessive-force claim" was not among the three contexts

in which the Court had "recognized" that "implied Bivens causes of

action were permitted"). It was then -- and only then -- that the

Court went on to address, as one would expect at the second step

of the analysis, whether there were "'special factors'

counsel[ing] against recognizing an implied Bivens cause of

action" in that new context. Id. at 944. Analyzing those factors,

it "declined to extend Bivens to [this] new context[]." Id. at

945. If anything, then, the two-step framework is, after Goldey,

even more solidly supported in the precedent than it already was.

In sum, we cannot agree that any precedent of the Court

holds that a previously unconsidered alternative remedy akin to

the IGA's administrative mechanism for lodging complaints in and

- 43 - of itself suffices to render a context new. There is none that

does.

5.

The dissent also suggests that our own circuit's

precedents compel the conclusion that the IGA's administrative

remedy independently renders this context new. It first suggests

that we decided the question of whether an alternative remedy is

a special factor that independently creates a new context in

González, 864 F.3d 45. But the "special factors" language that

the dissent relies on in that case plainly draws from our analysis

at step two. See id. at 53 & n.5. We thus cannot agree that we

decided there the antecedent question of whether the presence of

a remedy that was not previously considered is necessarily a

difference that is meaningful.

The dissent also invokes our recent precedent in

Waltermeyer v. Hazlewood, 136 F.4th 361 (1st Cir. 2025). But that

case did not involve any of the differences that we are presented

with here. The claims in Waltermeyer were premised on Carlson,

rather than Bivens itself. Id. at 362. So, we cannot see how the

differences that we found meaningful there -- none of which

concerned the presence of an administrative means of lodging

complaints about misconduct -- are relevant to the question

presented here. Nor does the dissent explain why such a comparison

would be appropriate.

- 44 - 6.

The dissent relies as well on cases from our sister

circuits finding a context to be new. However, none of those

cases, save for one, held that there was an alternative remedy

that in and of itself made the context there new. See Kalu v.

Spaulding, 113 F.4th 311, 327-29 (3d Cir. 2024) (noting that

"several factors render[ed] [the] claim meaningfully different"

including "a different kind of officer misconduct" and the

"heightened risk" of "judicial intrusion into a different aspect

of federal prison administration"); Logsdon, 91 F.4th at 1358-60

(first explaining that the case presented a new context because it

involved a "new category of defendant" and then describing "the

availability of alternative remedies" as an "independent ground

for not . . . creat[ing] a remedy" (emphasis added)); Johnson v.

Terry, 119 F.4th 840, 859 (11th Cir. 2024) (listing the

constitutional right and injury as among the "differences" that

"ma[d]e th[e] [case] a new context"); Lewis v. Bartosh, No.

22-3060-PR, 2023 WL 8613873, at *2 (2d Cir. Dec. 13, 2023) (finding

a new context, in part, based on the new category of defendant).7

7 The dissent also cites Bell v. Leavenworth U.S. Penitentiary, No. 24-3156, 2025 WL 1650187 (10th Cir. June 11, 2025), but that case did not discuss the role of alternative remedies at any step of the Bivens analysis, let alone the first, id. at *2.

- 45 - The one exception is Noe v. United States Government,

No. 23-1025, 2023 WL 8868491, at *3 (10th Cir. Dec. 22, 2023).

But that case is an unpublished, nonbinding order. And it rested

on that panel's understanding that its prior decision, Silva v.

United States, 45 F.4th 1134 (10th Cir. 2022), required it to

foreclose Bivens relief when faced with an alternative remedy "even

if the factual context is not meaningfully different from" an

existing Bivens case, Noe, 2023 WL 8868491, at *3.

But while Silva is itself precedential, Noe's

interpretation of Silva's holding is dubious. Silva explicitly

recognized that a meaningful difference did place the plaintiff's

claim into a new context -- it noted that the "distinction between"

the plaintiff's "excessive force" claim and the "deliberate

indifference to medical needs claim" in Carlson was "sufficient to

conclude that [his] claim would require an extension of Bivens"

and thus arose within a new context. 45 F.4th at 1137; see also

id. ("[H]is claim clearly constitutes an expansion of Bivens.").

7.

That no case has turned up that adopts the dissent's

view of the state of Bivens law should not be surprising. In

Bivens, Carlson, and Davis, the Court each time considered the

context in which the claimed constitutional violation arose. In

light of that context, it then weighed the need for a damages

remedy against the individual officer and concluded that it was

- 46 - proper to imply one. Thereafter, the Court has reaffirmed each of

those rulings despite knowing of administrative remedies it had

not earlier considered (to say nothing of the damages remedy that

the FTCA was amended to provide).8

Thus, while it is true that when the context is new, we,

as a lower court, must account for an administrative remedy in

weighing whether to extend an existing Bivens remedy, we see little

to suggest that we may treat the existence of that remedy as an

invitation to set aside the Court's prior calculus. And we are

particularly disinclined to infer that such a suggestion was

intended when doing so would entail the conclusion that the Bivens

remedy has long been a relic, despite the Court having affirmed

its continuing vitality and noted the "powerful reasons to retain

it." Abbasi, 582 U.S. at 134.

8.

We make one last observation: Congress itself has given

no indication that -- contrary to its intent as expressed through

the Westfall Act -- it meant to "abrogate Bivens" in creating the

administrative remedy at issue here. Hernandez, 589 U.S. at 111

The Court has also demonstrated its awareness of the IGA in 8

the context of internal administrative remedies within other federal agencies. See Dep't of Transp. v. Ass'n of Am. R.Rs., 575 U.S. 43, 52 (2015) (explaining that the IGA requires Amtrak to maintain an inspector general "much like [other] governmental agencies"); NASA v. FLRA, 527 U.S. 229, 237-39 (1999) (discussing the IGA in the context of NASA).

- 47 - n.9. Certainly, nothing in the text of the IGA suggests such an

intent. And, unlike the PLRA, to which Abbasi gave weight in

finding the context there new, the IGA does not purport to address

when or how Bivens suits may be brought.

Nor have we been able to identify any aspect of the IGA's

statutory history that suggests a legislative aim of limiting

Bivens suits that otherwise would be available. In fact, Congress

initially authorized the relevant IGA remedy here just one month

before it "explicit[ly] except[ed]" "Bivens claims" from the

Westfall Act's exclusivity requirement. Hui, 559 U.S. at 807;

compare Inspector General Act Amendments of 1988, Pub. L. No.

100-504, 102 Stat. 2515 (1988) (enacted October 18, 1988), with

Federal Employees Liability Reform and Compensation Act of 1988,

Pub L. N. 100-694, 102 Stat. 4563 (1988) (enacted

November 18, 1988).

To be sure, we are not addressing the distinct

question -- independent of the two-step framework -- of whether

Congress has "preclude[d] a claim under Bivens" by "affirmatively

foreclos[ing] one." Egbert, 596 U.S. at 493 n.2; see, e.g., Hui,

559 U.S. at 808 (concluding that "the text of [the statute involved

there] plainly indicates that it precludes a Bivens action against

petitioners for the harm alleged in this case"). But the IGA's

statutory history does have relevance to the step-one issue that

is at hand.

- 48 - To the extent that, through the Westfall Act, Congress

expressed its "clear" intent to "le[ave] Bivens where it found

it," we cannot see why the IGA -- which was enacted one month

before the Westfall Act -- should not be understood to reflect

that same intent. Hernandez, 589 U.S. at 111 n.9; cf. Merck & Co.

v. Reynolds, 559 U.S. 633, 648 (2010) ("We normally assume that,

when Congress enacts statutes, it is aware of relevant judicial

precedent."). It would be surprising, to say the least, for

Congress to have made a point of leaving Bivens where it found it

if just a month before it had taken action that it understood to

have left Bivens for dead.

As a result, the absence of any mention of Bivens in the

IGA, even in its legislative history, offers no sign that Congress

intended to leave Bivens in worse shape than the Westfall Act did.

Cf. Abbasi, 582 U.S. at 148-49 (considering "legislative action

suggesting that Congress does not want a damages remedy"). If

anything, the silence offers further reason for us not to do what

the Court has so far declined to do -- declare that, because of a

decades-old legislative change codifying a means of lodging

internal complaints, the remedy recognized in Bivens may no longer

be asserted in any context, no matter how similar the context

otherwise is to the one involved in Bivens itself. See Chisom v.

Roemer, 501 U.S. 380, 396 n.23 (1991) ("Congress' silence in this

- 49 - regard can be likened to the dog that did not bark." (citing A.

Doyle, Silver Blaze, in The Complete Sherlock Holmes 335 (1927))).

D.

In the end, our task is to determine whether this case

arises in a new context relative to Bivens and then, if it does,

to determine whether there are special factors counseling

hesitation in extending the damages remedy that Bivens recognized.

That first step of that analysis calls on us "to apply a familiar

mode of judicial reasoning": "determin[ing] if the case before

[us] fits within the Court's still-valid -- but now quite

limited -- precedent." Snowden, 72 F.4th at 244.

We thus must decide whether the differences between this

case and Bivens are meaningful, given the Court's reaffirmation of

the result of the weighing that it did in Bivens in recognizing

the implied cause of action for damages there. For the reasons we

have explained, we conclude that the differences here are not

meaningful, in part because the relevant precedents fail to show

that the IGA is a legal development that "would require reweighing

the costs and benefits of a damages remedy against federal

officials" as to the excessive force claims in this case in a way

that the Court has not already weighed them in recognizing the

cause of action in Bivens itself. Id. at 244. Were we to conclude

otherwise, we would have to conclude that the Court has been

- 50 - reaffirming the existence of a remedy that had long since ceased

to exist.

Perhaps the Court will be convinced to conclude that the

IGA's administrative mechanism for filing internal complaints

suffices to make this context new and so to trigger a new weighing

that supersedes the earlier one. But, from where we sit, we cannot

conclude that the Court already has come to that conclusion and

thereby invited lower courts to render unavailable in any context

the remedy that it has deemed necessary in the context that Bivens

itself presented.

Accordingly, we conclude that the District Court erred

in relying on the IGA to decide that Arias's excessive force claims

arise in a new context. Moreover, the defendants have failed to

identify any other factual circumstances that, taken alone or

together, suggest that the differences between the plaintiff's

excessive force claims and those in Bivens are in any sense

meaningful.9 We therefore conclude that the context here is not

9 In reaching this conclusion, we emphasize that we do not intend to cast doubt on the possibility that other excessive force claims may, in fact, present a new context. The outcome could be different if, for example, the plaintiff alleged claims against a new category of defendants. Compare Carlson v. Green, 446 U.S. 14, 25 (1980) (recognizing a Bivens claim for Eighth Amendment claims of inadequate medical treatment against federal prison officials), with Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (holding that an Eighth Amendment inadequate medical treatment claim against a private prison operator presented a new context).

- 51 - new and that, as a result, we need not reach step two of the Bivens

analysis. See Quinones-Pimentel, 85 F.4th at 70 (explaining that

if there is no new context "the analysis ends there and relief

under Bivens is available"). Accordingly, we reverse the grant of

summary judgment to the defendants on Arias's excessive force

IV.

Arias's failure-to-intervene claims are a different

matter. The District Court also relied on the existence of the

IGA's alternative remedy to dismiss those claims. But, in

addition, it identified another difference that it concluded was

meaningful: the absence of any bystander liability claims in Bivens

itself. Because Arias does not raise on appeal any arguments that

challenge this independent basis for the District Court's ruling,

we have no reason to conclude that ruling was erroneous. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

The judgment granting summary judgment to the defendants

is affirmed as to Arias's failure-to-intervene claims and reversed

and remanded for further proceedings consistent with this decision

as to Arias's excessive force claims.

- Concurring and Dissenting Opinion Follows -

- 52 - LYNCH, Circuit Judge (Concurring In Part and Dissenting

In Part). I concur in the majority's affirmance of entry of

summary judgment in Arias' failure-to-intervene claim. I

respectfully dissent from the majority's holding reversing entry

of summary judgment against Arias' Fourth Amendment excessive

force claims. The majority misreads Supreme Court commands when

it concludes that congressional amendment of the IGA, post-Bivens

is not a "meaningful difference." The majority further errs in

concluding that even if the IGA were a meaningful difference, the

IGA would not present a "new context." The majority incorrectly

reasons that "conclud[ing] otherwise would" require "conclud[ing],

incongruously, that the Bivens remedy has been a dead-letter since

the IGA's amendment, even though the Supreme Court has reaffirmed

the existence of that remedy in the years after that now decades-

old legislative development."

The majority's framing and answer are incorrect for a

number of reasons. It is precisely when Congress has acted that

the judiciary should not, to use the Supreme Court's terminology,

"infer," "authorize," "enforce," "approve," "find," "prescribe,"

"recognize," "create," or "expand" a judicially created remedy for

Fourth Amendment excessive force claims. Congress is assuredly

aware of Bivens and it has decided that the IGA remains in effect

and is good law. Statutes, like court opinions, do not become

inoperative because they were enacted decades ago.

- 53 - The premises of the majority's reasoning are themselves

inaccurate. The Supreme Court has neither resolved a Fourth

Amendment arrest excessive force case in the years since the IGA's

passage, nor has it approved a single Bivens-type lawsuit since

Carlson v. Green, 446 U.S. 14 (1980). Rather, the Court has

repeatedly made it clear that it is up to Congress, not the courts,

to determine whether to create mechanisms and remedies for alleged

constitutional violations by federal officers. The judicially

created Bivens Fourth Amendment excessive force cause of action

and damages remedy is not a dead letter as to cases which have no

meaningful differences with Bivens, but only as to those cases.

The majority pays short shrift to the Article III concerns

articulated by the Supreme Court that it is properly the function

of Congress, not the federal courts, to authorize such causes of

action.10 Goldey v. Fields, 606 U.S. 942, 945 (2025) (per curiam),

stated "[f]or the past 45 years, this Court has consistently

declined to extend Bivens to new contexts," thus discrediting the

majority's reasoning that the Court has somehow given new life to

Bivens in the face of the IGA.

10"[T]he question whether a given remedy is adequate is a legislative determination that must be left to Congress, not the federal courts. . . . That is true even if a court independently concludes that the Government's procedures are 'not as effective as an individual damages remedy.'" Egbert v. Boule, 596 U.S. 482, 498 (2022) (quoting Bush v. Lucas, 462 U.S. 367, 372 (1983)).

- 54 - In my view, the majority's holding is not only directly

contrary to many Supreme Court holdings, but it also exacerbates

the existing splits among the circuits and introduces a new split.11

Under the Court's latest guidance, the issue before us is whether

this case arises even slightly in a new context. See id. at 944-

45. The differences here are more than slight, including both

that Congress has chosen to create the IGA administrative remedy

and that there are other meaningful differences with Bivens.

Arias' arrest for drug dealing was made pursuant to a warrant and

thus on probable cause, and the assertion of excessive force arose

from the officers' attempt to enforce the warrant in a highly

public place, a mall parking lot where there was a significant

risk to the public. Arias' claim is factually different and in a

different context than the excessive force claim made years ago in

Bivens.

There are several steps in the test which binds us for

whether this claim for damages survives. See Egbert, 596 U.S. at

492-93. These steps start with whether the claim presents "'a new

Bivens context' -- i.e., is it 'meaningful[ly]' different" from

Bivens. Id. at 492 (alteration in original) (quoting Ziglar v.

Abbasi, 582 U.S. 120, 139 (2017)); see also Hernandez v. Mesa, 589

The Supreme Court may wish to address these circuit splits, 11

reflecting the need for additional guidance to lower court judges, who in good faith have reached different outcomes.

- 55 - U.S. 93, 102 (2020). The Supreme Court has identified a non-

exhaustive list of what are "meaningful" differences and has

included "special factors" on that list:

Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. 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.

Abbasi, 582 U.S. at 139-140 (emphasis added). "Second, if a 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.'" Egbert, 596

U.S. at 492 (quoting Abbasi, 582 U.S. at 136). The Court has

stressed that "[i]f there is even a single 'reason to pause before

applying Bivens in a new context,' a court may not recognize a

Bivens remedy." Id. (quoting Hernandez, 589 U.S. at 102).

The Egbert Court further held that "[w]hile our cases

describe two steps, those steps often resolve to a single question:

whether there is any reason to think that Congress might be better

- 56 - equipped to create a damages remedy." Id. Applying Egbert's

ruling that the two questions often resolve to a single question,

Goldey decided the two steps simultaneously, demonstrating it was

proper to do so. See 606 U.S. at 944-45. By contrast the majority

holds it is error for a court not to take the first step first,

and if the first step is not satisfied, then the case must be

remanded to the district court, which cannot consider the second

step before then. That itself is error. In this case, if not

necessarily in all cases, the two steps resolve into one.

The Court has specifically held that even "small"

differences suffice to create a "new context," and that "the new-

context inquiry is easily satisfied." Abbasi, 582 U.S. at 149.

Hernandez explained that "[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 [claim] was previously recognized."

589 U.S. at 103. And in Egbert, the Court held that while the

facts at issue there "involve[d] similar allegations of excessive

force and thus arguably present[ed] 'almost parallel

circumstances' [to Bivens] . . . these superficial similarities

[we]re not enough to support the judicial creation of a cause of

action." 596 U.S. at 495 (quoting Abbasi, 582 U.S. at 139).

In the decades since Bivens was decided, the Court "ha[s]

come 'to appreciate more fully the tension between' judicially

created causes of action and 'the Constitution's separation of

- 57 - legislative and judicial power,'" and that unless a court exhibits

the "utmost deference to Congress's preeminent authority in

[creating a cause of action], it 'arrogat[e][s] legislative

power.'" Egbert, 596 U.S. at 491-92 (second alteration in

original) (quoting Hernandez, 589 U.S. at 100). The Court has

further emphasized that "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," and "[i]n most

instances, . . . the Legislature is in the better position to

consider if 'the public interest would be served' by imposing a

'new substantive legal liability.'" Abbasi, 582 U.S. at 133, 136

(quoting Schweiker v. Chilicky, 487 U.S. 412, 426-27 (1988)). Even

seemingly small variations from Bivens are "meaningful" precisely

because they inappropriately encroach on legislative power.

Egbert makes it even more clear that the IGA creates

exactly such a new context:

[A] court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, "an alternative remedial structure." If 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."

- 58 - 596 U.S. at 493 (citations omitted) (quoting Abbasi, 582 U.S. at

137). Egbert expressly held that an alternative remedial structure

"alone" bars a Bivens remedy. Id. (quoting Abbasi, 582 U.S. at

137). The Supreme Court has repeatedly held that alternative

remedies can create a "situation altogether different from

Bivens." Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73 (2001);

see also Bush, 462 U.S. at 377-78.

The majority attempts, wrongly, to dismiss Goldey, but

Goldey also held that no Bivens action was present because "'an

alternative remedial structure' already exists," and that no

Bivens cause of action exists when "Congress has actively

legislated in the area . . . but has not enacted a statutory cause

of action for money damages." 606 U.S. at 944. Goldey held it

was error to recognize a Bivens claim because it "could have

negative systemic consequences for [federal] officials." Id. That

is true here.

The majority is incorrect in reading Abbasi as

supporting its position that the existence of a congressionally

created alternative remedy does not necessarily create a new

context. Indeed, to the extent that Abbasi addressed the role of

administrative remedies, it noted that the "case also ha[d] certain

features that were not considered in the Court's previous Bivens

cases and that might discourage a court from authorizing a Bivens

remedy. As noted above, the existence of alternative remedies

- 59 - usually precludes a court from authorizing a Bivens action."

Abbasi, 582 U.S. at 148; see also Administrative Remedy Program,

44 Fed. Reg. 62250 (Oct. 29, 1979) (to be codified at 28 C.F.R.

§ 542).

The Bivens Court had no occasion to consider the IGA,12

as Bivens was decided in 1971, prior to the enactment of the IGA.

Congress created the Inspector General Act of 1978, 5 U.S.C. ch. 4

(amended in 1988 to apply to the Department of Justice, Inspector

General Act Amendments of 1988, Pub. L. No. 100-504, 102 Stat.

2515 (1988)), and the Executive established the Office of

Professional Responsibility, 28 C.F.R. § 0.29c(c). These

structures create an administrative complaint process which

provides for formal investigation into allegations of DEA agent

misconduct, with potential consequences including disciplinary

action and criminal prosecution. That congressionally created

alternative structure alone should result in entry of judgment for

The majority's reasoning that Congress demonstrated no 12

intent to abrogate Bivens with the creation of the administrative remedies at issue asks the wrong question, as the Supreme Court makes clear. It is also inconsistent with this circuit's prior holding that Congress need not have explicitly identified the remedial structure at issue as intended to supplant Bivens. In González v. Vélez, we held that the issue is "whether there exists an alternative process that Congress reasonably may have viewed as an equally effective surrogate for an action brought directly under the Constitution." 864 F.3d 45, 53 (1st Cir. 2017) (emphasis added).

- 60 - the defendants on these claims.13 Congress created an alternative

structure that "vindicate[s] the Constitution by allowing some

redress for injuries." Abbasi, 582 U.S. at 148. Courts may not

substitute for the congressionally created procedure and remedy a

judicially created Bivens cause of action. While Congress chose

in the IGA not to provide the identical procedures and remedies as

in Bivens, Egbert and its progeny make clear that is a choice for

Congress to make.14

The majority seeks to minimize the significance of the

IGA's remedial scheme by repeatedly asserting a straw man: that

the Supreme Court has not overruled Bivens itself in the years

since the IGA's passage. But neither has the Supreme Court found

a single case in which it has continued a Bivens remedy since

Carlson, a case from the "heady days in which th[e] Court assumed

common-law powers to create causes of action." Egbert, 596 U.S.

13 Itis true that Hernandez found that the Federal Tort Claims Act (FTCA) is not an alternative remedy that abrogates Bivens. 589 U.S. at 111 n.9. But Hernandez, which was decided before Egbert, says nothing at all about the IGA and thus does not support the majority's argument. 14 The fact that an alternative remedial structure does not provide for money damages does not matter. In Egbert, the Supreme Court rejected arguments that the alternative remedial structure at issue was inadequate because the defendant was not entitled to participate and had no right to judicial review, noting that "we have never held that a Bivens alternative must afford rights to participation or appeal." Egbert, 596 U.S. at 497-98. Abbasi likewise held that alternative remedies barred a Bivens remedy without any discussion of whether they provided for damages. Abbasi, 582 U.S. at 148.

- 61 - at 491 (quoting Malesko, 534 U.S. at 75 (Scalia, J., concurring)).

The majority thus attempts to read out of Egbert and its progeny

the Court's main message: that lower courts should not in any way

use Bivens to justify judicially created causes of action in cases

like this. The "functional test" adopted by the majority is itself

doubtful and neither congruent nor consistent with the Supreme

Court's tests. And even if a functional test were the correct

test, this case would fail it, as it would "alter the policy

balance."

The majority's attempt to say that the existence of an

alternative remedial structure qualifies as a "special factor" for

purposes of the new-context analysis but does not amount to a

"meaningful" difference is an outlier amongst our sister circuits,

is also wrong, and creates a circuit split. The Second, Third,

Tenth, and Eleventh Circuits have all held that alternative

remedial structures create a "new context" or, more generally,

categorically bar Bivens-type relief. See, e.g., Johnson v. Terry,

119 F.4th 840, 858 (11th Cir. 2024) ("[T]he context of these claims

is different from the context of the claim in Carlson because there

the Court did not consider whether there were alternative

remedies . . . ."); Logsdon v. U.S. Marshal Serv., 91 F.4th 1352,

1359 (10th Cir. 2024) (identifying the existence of an alternative

remedial structure as an "independent ground for not recognizing

a Bivens action" (emphasis added)); Kalu v. Spaulding, 113 F.4th

- 62 - 311, 327-28 (3d Cir. 2024) (identifying the existence of an

alternative remedial structure as a factor creating a new context);

Lewis v. Bartosh, No. 22-3060, 2023 WL 8613873, at *1 (2d Cir.

Dec. 13, 2023) (holding that "'[i]f a claim arises in a new

context' -- such as if it involves 'a new category of

defendants' -- or if there is an 'alternative remedial structure,'

a Bivens remedy is generally 'unavailable'" (quoting Egbert, 596

U.S. at 492-93)); see also Silva v. United States, 45 F.4th 1134,

1141 (10th Cir. 2022) (holding that under Egbert, Bivens-type

claims do not survive when an alternative remedial structure

exists); Noe v. U.S. Gov't, No. 23-1025, 2023 WL 8868491, at *3

(10th Cir. Dec. 22, 2023) (holding that Bivens-type claim did not

survive because of existence of alternative remedial structure

even if facts were otherwise identical).15 The majority breaks

with all of these circuits and adopts a holding that is sui

generis.16

15The majority tries to discount the Tenth Circuit's decision in Noe. While the Tenth Circuit's opinion in Noe was unpublished, that court reached substantially the same conclusion in the published Logsdon opinion, which held that "the availability of alternative remedies" there was an "independent ground for not recognizing a Bivens action." Logsdon, 91 F.4th at 1359. 16The Ninth Circuit's decision in Watanabe v. Derr, 115 F.4th 1034 (9th Cir. 2024), reh'g denied en banc, 139 F.4th 1056 (2025), does not support the majority as it was not a Fourth Amendment excessive force case, provides almost no reasoning, and the government did not, apparently, present the special factors argument it has presented here.

- 63 - Arias' case is also "meaningfully different" from Bivens

in addition to the IGA because there are numerous factual and legal

claim differences. First, unlike Bivens, Arias was arrested

pursuant to a warrant. See Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971). There was

a judicial determination of probable cause17 that Arias had

committed crimes. There was no such determination that Bivens had

committed a crime, nonetheless officers entered his home and tried

to arrest him.

Further, unlike Bivens who was arrested in his home,

id., Arias was arrested in his car in a shopping mall parking lot.

These facts present meaningful differences in an excessive force

claim, which considers "whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight."

Graham v. Connor, 490 U.S. 386, 396 (1989). Both in effecting the

arrest and in preventing any attempts by Arias to speed away to

avoid arrest, the law enforcement officers had to account for the

real dangers which were posed to the women, children, and men in

the lot of the shopping mall. Indeed, in circumstances where the

17In the months before Arias' arrest, "an undercover Drug Enforcement Administrative operative[] made several controlled purchases of fentanyl-laced heroin from" Arias. Order on Defendants’ Renewed Motion for Summary Judgment, Arias v. U.S., No. 17-cv-516-SM, ECF No. 56 at 3 (Jan. 19, 2021).

- 64 - suspect may pose a threat to the arresting officers or others, or

may flee, the Supreme Court has held that officers may reasonably

use additional force to effectuate a seizure. See Scott v. Harris,

550 U.S. 372, 384-86 (2007); see also Bannon v. Godin, 99 F.4th

63, 79-83 (1st Cir. 2024) (reasonableness of force must be assessed

in light of threat to officer and members of the public and so

lethal force was reasonable), cert. denied, 145 S. Ct. 1048 (2025),

reh'g denied, 145 S. Ct. 1347 (2025).

More than that, public parking lots and people's homes

are different for Fourth Amendment purposes. Fourth Amendment

interests are strongest in the home. See, e.g., Florida v.

Jardines, 569 U.S. 1, 6 (2013) (noting that "when it comes to the

Fourth Amendment, the home is first among equals" and that "the

distinction between the home and the open fields is 'as old as the

common law'" for purposes of determining whether an unlawful search

has taken place (quoting Hester v. United States, 265 U.S. 57, 59

(1924))); United States v. Karo, 468 U.S. 705, 714 (1984)("[o]ur

cases have not deviated from th[e] basic Fourth Amendment

principle" that "private residences are places in which the

individual normally expects privacy free of governmental intrusion

not authorized by a warrant, and that expectation is plainly one

that society is prepared to recognize as justifiable"); Payton v.

New York, 445 U.S. 573, 601 (1980)("To be arrested in the home

involves not only the invasion attendant to all arrests but also

- 65 - an invasion of the sanctity of the home. This is simply too

substantial an invasion to allow without a warrant . . . ."

(citation omitted)).

The majority reasons that excess force is the same no

matter these differences and so the differences cannot be

meaningful. I disagree, but more importantly, Congress could

easily find these differences meaningful. Congress could readily

conclude arrests without warrant in the sanctity of the home are

greater invasions of Fourth Amendment protections than attempts by

law enforcement to effectuate arrest warrants in busy public mall

parking lots. Each of these clear differences, whether taken alone

or collectively, creates a "new context."18

The majority also magnifies existing circuit splits

regarding other differences from Bivens. The Fourth, Fifth, and

Sixth circuits have held that the existence of a warrant amounts

to a meaningful difference from Bivens in Fourth Amendment claims.

18Arias and the majority rely on Hicks v. Ferreyra, 64 F.4th 156 (4th Cir. 2023) and Snowden v. Henning, 72 F.4th 237 (7th Cir. 2023), as demonstrating the viability of Bivens-type claims. Yet these out-of-circuit cases are distinguishable on the very characteristics that place this case in a "new context": Hicks did not involve a warrant or an alternative remedial structure, see Hicks, 64 F.4th at 167, and the Snowden court did not involve a remedial structure other than the FTCA (and the Snowden court reasoned that the FTCA is not an alternative to Bivens-type actions), Snowden, 72 F.4th at 246 n.4. The majority also cites DeMayo v. Nugent, 517 F.3d 11 (1st Cir. 2008), but it too has little relevance, as it was decided well before Egbert and the line of Supreme Court cases that are controlling here.

- 66 - See Annappareddy v. Pascale, 996 F.3d 120, 135 (4th Cir.

2021)("What Bivens involved was the Fourth Amendment right to be

free of unreasonable warrantless searches and seizures; this case,

by contrast, involves searches and a seizure conducted with a

warrant."); Cantú v. Moody, 933 F.3d 414, 423 (5th Cir. 2019);

Cain v. Rinehart, No. 22-1893, 2023 WL 6439438, at *3 (6th Cir.

July 25, 2023). The majority disagrees. But the Cantú decision's

own language shows the Fifth Circuit stated exactly that: One of

the "[m]any measures" on which "Cantú's claims [we]re meaningfully

different from the Fourth Amendment claim at issue in Bivens" was

that the officers had not "entered his home without a warrant."

Cantú, 933 F.3d at 423 (emphasis added). Since a new context

arises whenever a claim is "'meaningful[ly]' different" from

Bivens, the existence of a warrant produces a new context. Egbert,

596 U.S. at 492 (alteration in original) (emphasis added)(quoting

Abassi, 582 U.S. at 139). The Seventh and Tenth circuits have

held the opposite, with the latter court acknowledging this exact

circuit split. See Snowden, 72 F.4th at 247; Logsdon, 91 F.4th at

1357 ("agree[ing]" with Snowden while recognizing "there is

substantial authority to the contrary" as "[s]everal other

circuits have said that a new Bivens context exists when federal

officials execute a valid warrant"). By joining the Seventh and

Tenth circuits rather than the majority position, this court

exacerbates this existing and recognized split. And the majority

- 67 - is in conflict with the holding of the Tenth Circuit in Rowland v.

Matevousian that even "small" differences can create a new context

for Bivens-type claims. 121 F.4th 1237, 1243-44 (10th Cir. 2024).

Additionally, the Fifth and Ninth circuits have held

that challenged conduct occurring outside the home amounts to a

meaningful difference from Bivens, see Byrd v. Lamb, 990 F.3d 879,

882 (5th Cir. 2021); Mejia v. Miller, 61 F.4th 663, 668 (9th Cir.

2023)19, while the Seventh and Tenth circuits have held the

opposite, see Snowden, 72 F.4th at 247; Logsdon, 91 F.4th at 1357.

The majority also departs from this circuit's decision

in González, which held that a different remedial structure is a

meaningful special factor in denying Bivens relief. See 864 F.3d

at 53 ("The existence of such alternative processes is a special

factor . . . .").20 In Quinones-Pimental, this Court likewise

identified the existence of a warrant and the public arrest as

19The majority contends that Mejia is outside this split, as the challenged conduct in the case took place not merely outside the home, but on federal land. That decision's emphasis on the out-of-home location of the conduct belies this reading. See, e.g., Mejia, 61 F.4th at 668 ("More importantly, unlike Bivens, none of the events in question occurred in or near [the plaintiff's] home."). 20 Quinones-Pimental, 85 F.4th 63, does not address the question of whether an alternative remedial scheme would have been a special factor sufficient to create a "new context" under step one; it had no need to do so, since other factual differences from Bivens were sufficient to establish a new context. Id. at 70; see also Hornof v. United States, 107 F.4th 46, 65-66 (1st Cir. 2024) (same).

- 68 - aspects of meaningful difference from Bivens. See 85 F.4th at 71-

72 ("[T]ake first the law enforcement actions at issue here, which

differ entirely from those at issue in Bivens. . . . [N]o one's

home nor their person (naked or otherwise) was searched without a

warrant."). And in Waltermeyer v. Hazlewood, 136 F.4th 361 (1st

Cir. 2025), this court held that "factual and legal differences"

between the plaintiff's claims and Carlson created a new context.

Id. at 365.

I respectfully dissent.

- 69 -