In the
United States Court of Appeals for the Seventh Circuit ____________________ No. 21-1463 DONALD V. SNOWDEN, Plaintiff-Appellant, v.
JEREMY HENNING, Defendant-Appellee. ____________________
Appeal from the United States District Court for the Southern District of Illinois. No. 3:19-cv-01322-JPG — J. Phil Gilbert, Judge. ____________________
ARGUED NOVEMBER 2, 2021 — DECIDED JUNE 27, 2023 ____________________
Before SYKES, Chief Judge, and FLAUM and JACKSON- AKIWUMI, Circuit Judges. SYKES, Chief Judge. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court recognized an implied damages remedy against federal officers for certain constitutional violations. Bivens involved a claim for damages against federal narcot- ics agents for alleged Fourth Amendment violations stem- ming from a warrantless search, arrest, and unreasonable 2 No. 21-1463
use of force against the plaintiff in his home. The Court later extended the Bivens remedy to two additional contexts: a claim against a member of Congress under the Fifth Amendment for workplace sex discrimination, Davis v. Passman, 442 U.S. 228 (1979), and a claim against federal prison officials under the Eighth Amendment for failure to provide adequate medical care, Carlson v. Green, 446 U.S. 14 (1980). Since then, however, the Court has consistently refused to authorize new Bivens claims. Today, extending the Bivens cause of action is a “‘disfavored’ judicial activity.” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). In recent years, the Court has emphasized that creating new causes of action is the prerogative of Congress, not the federal courts. To guard against encroachments on legisla- tive authority, the Court has fashioned a two-step frame- work for evaluating Bivens claims. The first step considers whether the claim arises in a new context. The context is new if the claim is different in a “meaningful way” from an earlier Bivens claim authorized by the Court. Id. at 139. If the context is not new, then the claim may proceed. But if the context is new, then the analysis proceeds to the second step, which asks whether “special factors” counsel against author- izing a Bivens remedy. Id. at 136. This case requires us to survey the evolving Bivens land- scape. While staying at a hotel, Donald Snowden received a call from the front-desk clerk asking him to visit the lobby to pay for the room. Special Agent Jeremy Henning with the Drug Enforcement Administration (“DEA”) awaited Snowden’s arrival; a warrant had been issued for his arrest. According to Snowden, Agent Henning pushed him to the No. 21-1463 3
ground and—unprovoked—punched him several times in the face. Snowden suffered two black eyes and a left orbital fracture. Snowden sued Agent Henning, bringing a Fourth Amendment Bivens claim for use of excessive force during the arrest and a state-law claim for battery. The district judge dismissed the Bivens claim, concluding that it presents a new context and that special factors counseled against extending Bivens here. The judge dismissed the state-law battery claim without prejudice, and Snowden appealed. We resolve this case at step one of the Bivens inquiry. Snowden’s claim does not arise in a new context. While the Supreme Court has strictly limited the reach of Bivens, it has left the door open for at least some claims to proceed— provided, however, that the claim is not meaningfully different from Bivens itself (or one of the other two cases in which the Court recognized an implied remedy). A differ- ence is “meaningful” when it involves a factual distinction or new legal issue that might alter the policy balance that initially justified the implied damages remedies in the Bivens trilogy. If the case involves new or different considerations from an already-recognized Bivens action, then the inquiry moves to step two and separation-of-powers considerations are decisive. As the doctrine now stands, under the “special factors” inquiry, a court cannot extend Bivens to a new context if “there is any rational reason (even one) to think that Congress is better suited to weigh the costs and benefits of allowing a damages action to proceed.” Egbert v. Boule, 142 S. Ct. 1793, 1805 (2022) (internal quotation marks omit- 4 No. 21-1463
ted). Few (if any) new claims will survive this test. After all, creating new causes of action is primarily a legislative task. Still, some claims may proceed under a straightforward application of Bivens itself. Snowden’s case presents such a claim. We therefore reverse. I. Background We recount the facts as alleged in Snowden’s complaint, accepting the well-pleaded allegations as true at this stage of the litigation. Engel v. Buchan, 710 F.3d 698, 699–700 (7th Cir. 2013). On September 12, 2019, Snowden was staying at the Quality Inn in Carbondale, Illinois. He received a call from the front-desk clerk, who asked him to visit the lobby to pay for the room. The clerk knew that Agent Henning was present to arrest Snowden. An arrest warrant had been issued after a federal grand jury indicted Snowden for methamphetamine distribution. 1 When Snowden arrived in the lobby, Agent Henning rushed at him, pushing him into a door and onto the ground. Snowden did not resist, yet Henning punched him several times in the face. Snowden suffered two black eyes and a fractured left eye socket during the arrest. 2
1 AgentHenning attached the arrest warrant to his motion to dismiss. We may take judicial notice of matters of public record when reviewing a complaint. Fosnight v. Jones, 41 F.4th 916, 922 (7th Cir. 2022). 2 Snowden claims that the U.S. Attorney’s Office has video evidence confirming his account. He sought production of the video, but the judge denied the request as premature because the case had not yet proceeded to discovery on the merits. No. 21-1463 5
Several months later while in pretrial detention on the methamphetamine charge, Snowden filed a pro se complaint against Agent Henning alleging a Fourth Amendment claim for “grossly excessive force” and a battery claim under Illinois law. Snowden also named the DEA, Quality Inn, and the front-desk clerk as defendants. The claims against the DEA targeted the agency’s training and supervision practic- es, and the claims against Quality Inn and the front-desk clerk alleged that the hotel and its staff obstructed justice. Because Snowden filed a civil action against the govern- ment while in federal pretrial detention, the judge screened the pleading under the Prison Litigation Reform Act (“PLRA”). See 28 U.S.C. § 1915A. He construed the com- plaint to allege a Fourth Amendment Bivens claim against Henning for use of excessive force during Snowden’s arrest. The judge allowed that claim to move forward, and he also exercised supplemental jurisdiction over the state-law battery claim against Henning. He dismissed the claims against the DEA, Quality Inn, and the front-desk clerk. Agent Henning moved to dismiss the Bivens claim for failure to state a claim. He argued that this case presents a new context and that special factors counseled against extending Bivens. Henning also moved to convert the battery claim to one under the Federal Tort Claims Act (“FTCA” or “the Act”) and substitute the United States as the defendant. He explained that the FTCA provides the exclusive remedy for injuries stemming from a federal employee’s violation of state law while acting within the scope of his employment and that the United States is the only proper defendant under the Act. The government certified that Agent Henning 6 No. 21-1463
acted within the scope of his employment during the events in question. Snowden opposed both motions. In a pro se filing, he ar- gued that the constitutional claim, which was based on allegations of unreasonable force during an arrest, was not meaningfully different from Bivens. He did not explain his opposition to the motion to convert the battery claim to one under the FTCA and substitute the United States as the defendant. The judge dismissed the Bivens claim against Agent Henning. He identified certain factual distinctions between Snowden’s case and Bivens, including the location of the arrest, the presence of an arrest warrant, and the number of officers involved in the incident. He also identified what he characterized as a legal difference between the Fourth Amendment rights at issue in Snowden’s case and in Bivens. He described Bivens as “primarily” involving allegations concerning the “rights of privacy” implicated in an unlawful warrantless home entry, arrest, and search, while Snowden alleged a violation of his “right to be free from excessive force incident to an otherwise lawful arrest.” These differ- ences led the judge to conclude that Snowden’s case presents a new Bivens context. The judge then held that special factors weighed against recognizing a Bivens claim here—namely, the availability of an alternative remedy under the FTCA and the absence of a damages remedy against federal offic- ers in the FTCA or PLRA. Finally, the judge declined to substitute the United States on the battery claim and convert the claim to one under the FTCA. He explained that Snowden had pursued a Bivens claim against Agent Henning and should be able to decide No. 21-1463 7
for himself if he would also like to bring an FTCA claim against the United States as a substitute for the state-law tort claim. With the Bivens claim dismissed, no federal claim re- mained. The judge relinquished jurisdiction over the battery claim, dismissing it without prejudice. II. Discussion Snowden limits his appeal to the dismissal of his Bivens claim against Agent Henning. The judge’s other rulings— dismissing the other defendants at screening and declining to convert the battery claim to one under the FTCA—are not at issue here. The practice of recognizing implied damages remedies against federal officials for alleged constitutional violations had a short run at the Supreme Court. In its 1971 decision in Bivens, the Court authorized a damages remedy for a plain- tiff who alleged that federal narcotics officers violated his Fourth Amendment rights by entering and searching his home without a warrant and arresting him using unreason- able force. 403 U.S. at 389–90. Nearly a decade later, the Court recognized an implied damages action against a member of Congress for workplace sex discrimination in violation of the Fifth Amendment. Davis, 442 U.S. at 230, 248–49. The following year, the Court extended Bivens again, approving a cause of action for damages against federal prison officials for failure to provide adequate medical care in violation of the Eighth Amendment. Carlson, 446 U.S. at 16, 19. Carlson marked the end of the line. Since 1980 the Court has consistently rejected requests to recognize additional 8 No. 21-1463
Bivens claims. See Hernández v. Mesa, 140 S. Ct. 735, 743 (2020) (citing Supreme Court cases after Carlson that rejected Bivens claims). And in recent years the Court has made explicit what had been implicit—“that expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” Abbasi, 582 U.S. at 135 (quoting Iqbal, 556 U.S. at 675). Bivens emerged at a time when courts freely implied causes of action under federal statutes in the name of legisla- tive purpose. The Court later rejected statutory remedies created through “judicial mandate,” reinforcing that a cause of action must be supported by congressional intent ex- pressed clearly in statutory text. Id. at 133. The Court like- wise stressed 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.” Id. The Court’s most recent Bivens case makes the point more emphatically: “[C]reating a cause of action is a legislative endeavor.” Egbert, 142 S. Ct. at 1802. But the Court has stopped short of overruling the Bivens trilogy. Instead, it has fashioned a two-step framework to ensure that the judiciary does not further encroach on legis- lative authority under the banner of Bivens. The first step asks whether the plaintiff’s case presents “a new Bivens context.” Id. at 1803 (quoting Abbasi, 582 U.S. at 139). If it does not, then the plaintiff’s claim may proceed. But if the claim arises in a new context, then the court must consider whether “there are ‘special factors’ indicating that the Judi- ciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action No. 21-1463 9
to proceed.’” Id. (quoting Abbasi, 582 U.S. at 136). “If there is even a single ‘reason to pause before applying Bivens in a new context,’ a court may not recognize a Bivens remedy.” Id. (quoting Hernández, 140 S. Ct. at 743). We focus here on the first step—whether Snowden’s Bivens claim arises in a “new context.” A context is “new” if “the case is different in a meaningful way from previous Bivens cases” decided by the Supreme Court. Abbasi, 582 U.S. at 139. The Court has identified some differences that qualify as “meaningful”: the rank of the officers involved; the constitu- tional 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 dis- ruptive intrusion by the Judiciary into the func- tioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider. Id. at 140. A context may also be “new” when a “new catego- ry of defendants” is involved. Hernández, 140 S. Ct. at 743 (quotation marks omitted). Several cases show these principles in practice. In Abbasi illegal immigrants who were detained in a special detention unit in the aftermath of the September 11 terrorist attacks brought a damages claim against senior Department of Justice officials and prison wardens for harsh conditions in the unit. Seeking a remedy under Bivens, they pointed to 10 No. 21-1463
“significant parallels” with Carlson, which had recognized a cause of action under the Eighth Amendment for inadequate prison medical care. Abbasi, 582 U.S. at 147. The Court held that the case represented an extension of Bivens to a new context, noting that the claim implicated a different constitu- tional right (the Fifth Amendment vs. the Eighth Amend- ment), that alternative remedies might have been available, and that the PLRA suggested that Congress “chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment.” Id. at 148–49. These differ- ences “easily satisfied” the new-context test. Id. at 149. The Court followed a similar path in Hernández, which involved a cross-border shooting in which a Border Patrol agent shot and killed a Mexican teenager who had been running back and forth across the U.S.–Mexico border. 140 S. Ct. at 739–40. The victim’s parents sued the agent, relying on Bivens and Davis to support claims under the Fourth and Fifth Amendments. The Court explained that a Bivens claim may present a new context “even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized.” Id. at 743. And “[a] cross-border shooting is by definition an international incident”—a “world of difference” from the claims recognized in Bivens and Davis. Id. at 744. That differ- ence was significant: it raised foreign-relations and border- security concerns, which risked “disruptive intrusion by the Judiciary into the functioning of other branches.” Id. (quot- ing Abbasi, 582 U.S. at 140). The Court held that “multiple factors” counseled against extending Bivens, all of which could be “condensed to one concern—respect for the separa- tion of powers.” Id. at 749. No. 21-1463 11
Minneci v. Pollard, 565 U.S. 118 (2012), is another example. Prisoners sued employees of a privately operated federal prison seeking damages for inadequate medical care in violation of the Eighth Amendment. The plaintiffs argued that Carlson governed and authorized their Bivens claim. The Court responded that the defendants’ status as “personnel employed by a private firm” was a “critical difference.” Id. at 126. A prisoner could not ordinarily sue a federal employee for damages in a state-law tort action, but a state-law tort claim is an available remedy against an employee of a privately operated prison. The Court added that an earlier case had foreclosed the argument that a private prison- management firm should be treated as a “federal agent.” Id. at 126–27 (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 & n.4 (2001)). Because the context was new and the plaintiffs had an adequate remedy at state law, the Court declined to imply a Bivens remedy. 3 Id. at 131.
3 It’s worth noting that the Court’s Bivens cases do not uniformly adhere to the two-step framework. Sometimes the Court declines to imply a Bivens remedy because Congress had already created a remedial scheme. See, e.g., Bush v. Lucas, 462 U.S. 367, 380–90 (1983). Sometimes it declines to extend Bivens because of the sensitive domain involved, like the military. See, e.g., Chappell v. Wallace, 462 U.S. 296, 298–305 (1983). Still other cases decline to extend Bivens because a new category of defendant was present. See, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69–74 (2001). Though these cases do not formally follow the two-step frame- work, they resolve the Bivens question in a functionally similar way. Minneci is much the same. The Court began by considering whether Carlson controlled because the plaintiffs brought a Bivens claim based on prison conditions. Minneci v. Pollard, 565 U.S. 118, 126–27 (2012). Looking to its precedent, the Court considered whether the case involved a new context. The Court then evaluated the adequacy of a state-law tort remedy, which is a special factor that might counsel hesitation in extend- 12 No. 21-1463
The distinctions that proved meaningful in Abbasi, Hernández, and Minneci are not exclusive. Here Snowden raises a Fourth Amendment claim, and the threshold ques- tion for us is whether his case is meaningfully different from Bivens itself—in the sense meant by the Court’s “new con- text” caselaw. That a difference must be “meaningful” suggests that some degree of variation will not preclude a Bivens remedy. The Court has explicitly recognized this point: “Some differences, of course, will be so trivial that they will not suffice to create a new Bivens context.” Abbasi, 582 U.S. at 149. We understand the Court’s evolving Bivens guidance to suggest 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. If 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. Viewed another way, we’re called on to apply a familiar mode of judicial reasoning to determine if the case before us fits
ing the Bivens remedy. Minneci basically maps onto the two-step frame- work. On the other hand, sometimes the Court’s cases do not explicitly ad- dress the “new context” inquiry because they do not need to—where, for example, the case raises a claim under a different constitutional provi- sion (like the First Amendment) or presents an obviously distinct factual setting (like the military). These cases move straight to the analysis of special factors to determine whether to authorize a Bivens claim. See, e.g., Bush, 462 U.S. at 378–90; Chappell, 462 U.S. at 298–305. No. 21-1463 13
within the Court’s still-valid—but now quite limited— precedent, with special solicitude to the separation-of- powers concerns identified by the Court. This understanding accords with the cases we’ve just de- scribed. In Abbasi a damages remedy like the one recognized in Carlson might not be appropriate because the plaintiffs invoked a different constitutional right, had alternate reme- dies, and the PLRA suggested that Congress might not have wanted to extend Carlson to other prisoner-mistreatment claims. These differences, though “perhaps small,” suggest- ed that the factual and legal background had shifted enough from Carlson to warrant restraint. Id. The same was true in Hernández. A cross-border shooting implicates foreign- relations concerns that were not present in the everyday law-enforcement context of Bivens. That difference readily indicated that a court might weigh the propriety of an implied damages remedy differently than in Bivens. Finally, the presence in Minneci of a new class of defendant, subject to a state-law tort suit, signaled that the balance struck in Carlson did not apply. The availability of an adequate state- law remedy against a class of defendant not covered by the Court’s Bivens trilogy could suggest that the differences are sufficiently meaningful to require careful consideration of separation-of-powers factors that counsel against a Bivens action. Note that we speak not in absolute terms but in “mights” and “coulds” instead. That is because “our watchword is caution.” Hernández, 140 S. Ct. at 742. If a court finds differ- ences in a case that could upset a straightforward applica- tion of Bivens or Davis or Carlson, then the case presents a new Bivens context and the analysis moves to the “special 14 No. 21-1463
factors” inquiry. This understanding of the new-context requirement harmonizes the two steps in the Court’s Bivens framework. In the first step we identify claims that entail “meaningful” differences from the claims at issue in the Bivens trilogy—i.e., factual distinctions and legal issues that might alter the cost–benefit balance that justified an implied damages remedy in those cases. In the second step we pay special attention to separation-of-powers concerns, consider- ing whether “special factors” indicate that Congress is better equipped in the specific context to assess the costs and benefits of a damages remedy. An approach that sorts cases in the heartland of Bivens from those that might introduce separation-of-powers concerns makes sense because of the deference owed to Congress, which “is best positioned to evaluate ‘whether, and the extent to which, monetary and other liabilities should be imposed upon individual officers and employees of the Federal Government’ based on consti- tutional torts.” Id. (quoting Abbasi, 582 U.S. at 134). The Fourth Circuit has distilled the new-context inquiry in much the same way. The court explained: “[A] new context may arise if even one distinguishing fact has the potential to implicate separation-of-powers considerations.” Tate v. Harmon, 54 F.4th 839, 846 (4th Cir. 2022) (second emphasis added). And recent Bivens cases from other circuits also reflect this approach, finding a new context when there are separation-of-powers considerations different than those already present in the Bivens trilogy. See Bulger v. Hurwitz, 62 F.4th 127, 137–38 (4th Cir. 2023) (concluding that the Bivens claim arose in a new context because the plaintiff’s claim implicated the Bureau of Prisons’ “organizational policies, administrative decisions, and economic concerns inextricably tied to inmate transfer and placement determi- No. 21-1463 15
nations”); Dyer v. Smith, 56 F.4th 271, 277–78 (4th Cir. 2022) (new context because TSA officers operate under a different legal mandate); Tun-Cos v. Perrotte, 922 F.3d 514, 523–25 (4th Cir. 2019) (new context because immigration enforcement concerns noncitizens, because of “broad policy concerns,” and because ICE agents are a “new category of defendants”); Mejia v. Miller, 61 F.4th 663, 668–69 (9th Cir. 2023) (new context because “[t]he entire incident occurred on public lands managed by BLM and the National Park Service, a place where [the plaintiff] had no expectation of privacy”); K.O. ex rel. E.O. v. Sessions, No. 20-5255, 2022 WL 3023645, at *3–4 (D.C. Cir. July 29, 2022) (per curiam) (new context because the “case arises in the context of immigration deten- tion” and because the claims “implicate new defendants,” including “various high-level officials”). At the other end of the spectrum, a recent Fourth Circuit decision recognized that a Bivens claim remains viable if it doesn’t present concerns that might caution against the application of a preexisting damages remedy. Hicks v. Ferreyra, 64 F.4th 156, 166–69 (4th Cir. 2023) (concluding that the Bivens claim did not present a new context because it involved “not an extension of Bivens so much as a replay of the same principles of constitutional criminal law prohibit- ing the unjustified, warrantless seizure of a person” (internal quotation marks omitted)). Of course, just last term the Supreme Court emphasized just how narrow the path is for a Bivens claim to proceed. In Egbert the Court suggested that the two-step framework boils down to one question: “whether there is any reason to think that Congress might be better equipped to create a damages remedy.” 142 S. Ct. at 1803. Writing on a blank 16 No. 21-1463
slate, we might say that it is never appropriate for a federal court to create an implied cause of action for damages under the Constitution. See Abbasi, 582 U.S. at 134 (“[I]t is possible that the analysis in the Court’s three Bivens cases might have been different if they were decided today.”). But we operate within the current state of the doctrine, and the Court has said that its recent decisions are “not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose.” Id. Indeed, the Court has explained that “[t]he 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.” Id. Because Bivens remains good law, at least for now, we continue to apply it. On these understandings, we can identify no meaningful difference between Snowden’s case and Bivens to suggest that he should not be able to pursue this excessive-force claim. Agent Henning operated under the same legal man- date as the officers in Bivens—the enforcement of federal drug laws. He is also the same kind of line-level federal narcotics officer as the defendant–officers in Bivens. Like Webster Bivens, Snowden seeks damages for violation of his rights under the Fourth Amendment; more specifically, both plaintiffs alleged that officers used unreasonable force in an arrest. And the legal landscape of excessive-force claims is well settled, with decades of circuit precedent applying the Supreme Court’s test announced in Graham v. Connor, 490 U.S. 386 (1989). See, e.g., Doxtator v. O’Brien, 39 F.4th 852, 860–62 (7th Cir. 2022); Brownell v. Figel, 950 F.2d 1285, 1292– 93 (7th Cir. 1991). Officers have clear guidance on the level of force that is reasonable when arresting a suspect who No. 21-1463 17
does not resist. See Gonzalez v. City of Elgin, 578 F.3d 526, 539 (7th Cir. 2009) (“An officer’s use of force is unreasonable from a constitutional point of view only if, judging from the totality of circumstances at the time of the arrest, the officer used greater force than was reasonably necessary to make the arrest.” (internal quotation marks omitted)); Abbott v. Sangamon County, 705 F.3d 706, 732 (7th Cir. 2013) (conclud- ing that it had been “well-established in this circuit that police officers could not use significant force on nonresisting or passively resisting suspects”). Nor does allowing a Bivens claim here risk a “disruptive intrusion” into the “functioning of other branches.” At the very least, the intrusion is no more disruptive than what Bivens itself already approved. Finally, Snowden’s claim implicates no other contextual factor—whether a national security issue (Hernández), a different constitutional right coupled with alternative remedies (Abbasi), or a different class of defendant (Minneci)—that might lead us to move to the second step of the Bivens inquiry. 4 In short, consideration
4 Agent Henning discusses other factors only when he addresses the second step of the Bivens analysis, but the factors he identifies also do not suggest that Snowden’s claim arises in a new context. He points to the availability of a remedy under the FTCA. However, the statute does not displace a Bivens claim in the narrow cases where it is available. In Carlson the Court concluded that “victims of the kind of intentional wrongdoing alleged in this complaint shall have an action under FTCA against the United States as well as a Bivens action against the individual officials alleged to have infringed their constitutional rights.” Carlson v. Green, 446 U.S. 14, 20 (1980) (emphasis added). More recently the Court recognized that “Congress made clear that it was not attempting to abrogate Bivens,” Hernández v. Mesa, 140 S. Ct. 735, 748 n.9 (2020), because it excepted “a civil action … brought for a violation of the Constitution of the United States” from the FTCA’s 18 No. 21-1463
of the Abbasi factors points to the same conclusion: We do not risk arrogating a legislative function by allowing Snowden’s Bivens claim to proceed. Resisting this conclusion, Agent Henning argues that Bivens rests on “the right to be free of unreasonable warrant- less search and detention in one’s own home and arrest in the absence of probable cause.” He describes Snowden’s claim as rooted in “the right to be free of excessive force in the context of a lawful arrest in a public place pursuant to a warrant issued following a finding of probable cause.” This argument overlooks that the claim in Bivens specifically included an allegation that “unreasonable force was em- ployed in making the arrest.” Bivens, 403 U.S. at 389. Agent Henning also points to narrow factual differences to argue that Snowden’s claim presents a new context dis- tinct from Bivens. Drawing on the district judge’s reasoning, he highlights that the alleged Fourth Amendment violations took place in different locations (a hotel lobby here, a home in Bivens); that he had a warrant (the officers in Bivens did not); and that he was the only officer involved (six officers participated in the arrest at issue in Bivens). These distinc- tions are not sufficient to affect the Bivens inquiry. Hotel 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. The number of officers present might prove relevant to whether the force applied was reasonable, but as
exclusivity provision, 28 U.S.C. § 2679(b)(2)(A). The provision was “not a license to create a new Bivens remedy in a context [the Court] ha[s] never before addressed” but “simply left Bivens where it found it.” Hernández, 140 S. Ct. at 748 n.9. This case does not present a new Bivens context, so the Act does not come into play. No. 21-1463 19
a separation-of-powers matter, the presence of one officer rather than six is not meaningful. This case does not involve a different class of defendant—a new context that indeed might require more careful consideration. See, e.g., Minneci, 565 U.S. at 126–31; FDIC v. Meyer, 510 U.S. 471, 484–86 (1994). In short, the factual distinctions Henning emphasizes are of the “trivial” kind that “will not suffice to create a new Bivens context.” Abbasi, 582 U.S. at 149. Finally, Agent Henning seeks support in Oliva v. Nivar, 973 F.3d 438 (5th Cir. 2020). But Oliva involved a Bivens claim based on an allegation of excessive force that occurred at a security checkpoint in a Veterans Affairs hospital, and the distinctions there were meaningful. Id. at 440–41. The case involved a different type of officer with a different law- enforcement mandate: a VA police officer enforcing hospital safety (in contrast to narcotics officers carrying out a drug investigation). The seizure itself occurred in a government facility, a space that is meaningfully different than a private home or building for the purpose of a judicially implied damages remedy. The Fifth Circuit concluded that these distinctions mattered. The context therefore was new, and the court held that special factors warranted restraint. Id. at 443–44. The threat of a damages award against VA security officers could cause more lax enforcement of safety protocols in a government building. In other words, the circumstances in Oliva implicated the kind of policy balancing better left to Congress. Snowden’s Bivens claim raises no such distinc- tions. In the end, although the Supreme Court has narrowly cabined the Bivens remedy and consistently refused to recognize new claims, we cannot decline to apply “the 20 No. 21-1463
settled law of Bivens” unless Snowden’s case is meaningfully different—i.e., different in a way that implicates the separation-of-powers calculus. Abbasi, 582 U.S. at 134, 139– 40. There is no such difference here. Bivens may one day be reexamined; indeed, two Justices have proposed that it be abandoned. Egbert, 142 S. Ct. at 1809–10 (Gorsuch, J., concur- ring); Hernández, 140 S. Ct. at 750–53 (Thomas, J., concur- ring). But our role is to apply the Court’s caselaw as it stands now. Because Snowden’s claim is not meaningfully different than Bivens itself, it may proceed. REVERSED