USCA4 Appeal: 23-2224 Doc: 49 Filed: 07/30/2025 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-2224
EVY B. ORELLANA,
Plaintiff - Appellee,
v.
DEPUTY UNITED STATES MARSHAL RYAN GODEC, in his individual capacity; DEPUTY UNITED STATES MARSHAL TRISTAN MARTIN, in his individual capacity
Defendants - Appellants,
and
UNITED STATES OF AMERICA; JOHN DOE U.S. MARSHALS 1-2, in their individual capacities
Defendants.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Theodore D. Chuang, District Judge. (8:20-cv-00845-TDC)
Argued: January 31, 2025 Decided: July 30, 2025
Before GREGORY, RICHARDSON, and RUSHING, Circuit Judges.
Reversed by published opinion. Judge Richardson wrote the opinion, in which Judge Rushing joined. Judge Gregory wrote a dissenting opinion. USCA4 Appeal: 23-2224 Doc: 49 Filed: 07/30/2025 Pg: 2 of 20
ARGUED: Dana Lydia Kaersvang, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Timothy Francis Maloney, JOSEPH, GREENWALD & LAAKE, P.A., Greenbelt, Maryland, for Appellee. ON BRIEF: Brian M. Boynton, Principal Deputy Assistant Attorney General, Barbara L. Herwig, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Lisa Dickinson, General Counsel, Leah Brownlee Taylor, Deputy General Counsel, Leshia Lee- Dixon, Associate General Counsel, Office of General Counsel, UNITED STATES MARSHALS SERVICE, Washington, D.C., for Appellants. Alyse L. Prawde, JOSEPH, GREENWALD & LAAKE, P.A., Greenbelt, Maryland, for Appellee.
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RICHARDSON, Circuit Judge:
Evy Orellana suffered serious injuries when a tactical canine bit her leg as a U.S.
Marshals fugitive task force executed an arrest warrant for her boyfriend, Eric Trinidad.
She brought an action against the officers under Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), claiming that they had violated her Fourth
Amendment rights with an unreasonable search and seizure. The officers moved to dismiss
the claims, arguing that Bivens was unavailable in this situation. The district court denied
the motion, reasoning that the case was similar enough to Bivens that its cause of action
should apply.
We disagree. The Supreme Court has repeatedly cautioned courts about extending
Bivens into new areas. And this case is a new area for two reasons: The officers operated
as part of a narrow, collaborative federalist scheme mandated by Congress, and they had a
warrant to execute the search. Since this is a new context, we must consider whether any
reason exists to believe that Congress would be better suited to create the new cause of
action. There is, so we reverse.
I. Background
A. Factual Background
In 2018, a Maryland state court issued an arrest warrant for Eric Trinidad for first-
and second-degree assault and reckless endangerment. These charges stemmed from an
altercation with his girlfriend, Evy Orellana. Orellana, Trinidad, and their four-month-old
baby lived in the basement of Trinidad’s mother’s home. Although part of the basement
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could be reached from the main house, their living area was separated by a permanently
sealed door. Orellana and Trinidad could access their living area only through a separate
entrance in the back.
U.S. Marshals served the warrant at 2:00 AM. They were part of the Capital Area
Regional Fugitive Task Force, a joint task force composed of federal, state, and local law
enforcement officers that arrests fugitives under both state and federal warrants. Task force
members knocked on the front door, and Trinidad’s mother opened. She told them that
Trinidad wasn’t home. The officers asked everyone in the house to move outside and
proceeded to search the building.
During the search, however, an officer noticed that Trinidad was calling his
mother’s cell phone, which was sitting on a nightstand. And when the officers woke up
Trinidad’s sister, Vanessa, they saw that Trinidad was calling her phone too. An officer
asked Vanessa if Trinidad was in the basement. She nodded and said “Evy [Orellana], Eric
[Trinidad] and the baby are downstairs.” J.A. 474.
So, the Task Force members say, they called out to Trinidad from the top of the
basement stairs to warn that they would soon release their tactical dog, Dart. Trinidad
didn’t respond, so the officers sent Dart down to search for him. But Dart quickly returned.
They sent him down again; again he came right back. Then officers went down the stairs
and found the sealed-off door that separated Trinidad’s apartment.
The officers breached the barrier with a pry bar and a battering ram. They chipped
away until they managed to open a dog-sized hole. Then Dart squeezed through the hole
and ran into the basement apartment, where he bit Orellana, pulling her to the ground and
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tearing a chunk of flesh out of her leg. Officers heard screams, rushed through the door,
provided aid, and arrested Trinidad.
B. Procedural Background
Orellana sued, bringing Bivens claims against the officers in their individual
capacities, alleging that they used excessive force in violation of the Fourth Amendment. 1
The officers moved to dismiss, asserting that this was a new Bivens context and that special
factors counsel against extending the cause of action. In the alternative, they moved for
summary judgment, arguing that they were entitled to qualified immunity.
The district court denied the motions. It determined that the suit did not constitute
a new Bivens context and so denied the motion to dismiss. 2 Orellana v. United States, No.
20-cv-00845, 2023 WL 6217447, at *7 (D. Md. Sept. 25, 2023). It also concluded that
qualified immunity did not apply, and so it denied summary judgment on that issue. Id. at
*11.
The officers now take an interlocutory appeal, arguing that the district court’s
qualified-immunity and Bivens decisions were independent errors.
1 Orellana also sued the United States under the Federal Tort Claims Act. We address only her Bivens claims against the Marshals as the other claims remain pending. 2 Because the district court concluded that it wasn’t a new context, it did not reach Bivens step two and consider whether special factors counseled against extending the cause of action. 5 USCA4 Appeal: 23-2224 Doc: 49 Filed: 07/30/2025 Pg: 6 of 20
II. Jurisdiction
Before we proceed to the merits, we must first be sure that we are able to hear the
case. Unless a district court certifies an issue for interlocutory appeal, our jurisdiction is
limited to final orders. 28 U.S.C. § 1291; § 1292(b). And since orders denying summary
judgment, or a motion to dismiss, aren’t final, we normally aren’t able to hear them.
William v. Strickland, 917 F.3d 763, 767 (4th Cir. 2019).
But a narrow exception exists. Under the collateral order doctrine, we treat some
non-final orders as though they are final enough to create appellate jurisdiction. Thurston
v. Frye, 99 F.4th 665, 672 (4th Cir. 2024). For this doctrine to apply, the order needs to
“conclusively determine the question,” “resolve an important issue completely separate
from the merits of the action,” and “be effectively unreviewable on appeal from a final
judgment.” Id. (quoting Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989))
(quotation marks removed). Appeals from the denial of a qualified immunity defense fall
within the collateral order doctrine. See, e.g., Iko v. Shreve, 535 F.3d 225, 234 (4th Cir.
2008) (“[A] district court's denial of a claim of qualified immunity, to the extent that it
turns on an issue of law, is [immediately appealable] notwithstanding the absence of a final
judgment” (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). So we have appellate
jurisdiction over the district court denial of qualified immunity.
And appellate jurisdiction to review the officers’ qualified immunity also provides
appellate jurisdiction to review whether Bivens creates the cause of action to which the
officers assert that immunity. Wilkie v. Robbins, 551 U.S. 537, 550 n.4 (2007). Whether
Bivens creates a cause of action lies upstream of the officers’ affirmative qualified-
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immunity defense against that cause of action. Doe v. Univ. of North Carolina Syst., 133
F.4th 305, 315 (4th Cir. 2025). Affirmative defenses are relevant only when there is
potential liability; a shield matters only when a sword exists. So the affirmative defense
of qualified immunity directly implicates “the recognition of the entire cause of action”
under Bivens. Wilkie, 551 U.S. at 550 n.4. We thus have jurisdiction over the Bivens
question. 3
III. Discussion
We begin—and end—with the question whether Orellana has a cause of action
under Bivens. Although her claim bears superficial resemblance to Bivens, the Supreme
Court has repeatedly admonished that in this area, we must attend to details. And with
those details in focus, Orellana’s Bivens’ claim fails. Congress—not courts—should create
any cause of action for plaintiffs like Orellana. Holding that Orellana has no cause of
action, we affirm without considering whether the officers were protected by qualified
immunity.
A. The Supreme Court has warned us to be cautious about creating new Bivens actions
“Constitutional rights do not typically come with a built-in cause of action to allow
for private enforcement in courts.” DeVillier v. Texas, 601 U.S. 285, 291 (2024). “Instead,
constitutional rights are generally invoked defensively in cases arising under other sources
3 We apply de novo review. Benjamin v. Sparks, 986 F.3d 332, 351 (4th Cir. 2021). 7 USCA4 Appeal: 23-2224 Doc: 49 Filed: 07/30/2025 Pg: 8 of 20
of law, or asserted offensively pursuant to an independent cause of action designed for that
purpose.” And those independent causes of action must normally come from Congress,
for we are “[n]ow long past ‘the heady days in which [courts] assumed common-law
powers to create causes of action.’” Egbert v. Boule, 596 U.S. 482, 491 (2022) (quoting
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring)).
Still, the cause of action first created in Bivens continues to cover three narrow
domains. First, in Bivens itself, the Supreme Court created an implied cause of action under
the Fourth Amendment to recover damages suffered as the result of a warrantless search
and seizure. See generally Bivens, 403 U.S. 388. There, six Federal Bureau of Narcotics
agents, acting without a warrant or probable cause, arrested Bivens in front of his family.
They threatened to detain his family, then took Bivens away and strip-searched him at a
federal courthouse. Id. at 389. To remedy the situation, the Court fashioned a cause of
action so that Bivens would be “entitled to recover money damages for any injuries he has
suffered as a result of the agents’ violation of the [Fourth] Amendment.” Id. at 397.
Second, Davis v. Passman extended Bivens to a congressional staffer fired because of her
sex in violation of the Fifth Amendment. See 442 U.S. 228 (1979). Last, Carlson v. Green
extended Bivens to a third context, allowing a federal prisoner’s estate to bring an Eighth
Amendment claim for deficient care. See 446 U.S. 14, 16, 18–20 (1980).
“For the past 45 years, [the Supreme] Court has consistently declined to extend
Bivens to new contexts.” Goldey v. Fields, 606 U.S. 942, 945 (2025) (per curiam); see also
Tun-Cos v. Perrotte, 922 F.3d 514, 521 (4th Cir. 2019) (noting cases where the Supreme
Court has declined to extend Bivens to new contexts). In the meantime, it “has made clear”
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to the inferior courts “that expanding the Bivens remedy to a new context is an
‘extraordinary act’ that will be unavailable ‘in most every case.’” Mays, 70 F.4th at 202
(first quoting Egbert, 596 U.S. at 497 n.3; then quoting id. at 492).
B. Extending Bivens requires a two-step analysis
Under this precedent, we conduct “a highly restrictive two-step analysis” to decide
whether a Bivens cause of action exists. Bulger v. Hurwitz, 62 F.4th 127, 137 (4th Cir.
2023). At step one, we ask whether the case “arises in a ‘new context’ or involves a ‘new
category of defendants.’” Hernandez v. Mesa, 589 U.S. 93, 102 (2020) (quoting Malesko,
534 U.S. at 68). “And our understanding of a ‘new context’ is broad.” Id. If a case “is
different in a meaningful way from previous Bivens cases,” it involves an extension of
Bivens. Ziglar v. Abbasi, 582 U.S. 120, 139 (2017).
Many, many differences can be meaningful: “[T]he rank of the officers involved,”
“the constitutional right at issue,” “the extent of judicial guidance” on the issue, “the
generality or specificity” of the action in question, “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,” and “potential special factors that previous Bivens
cases did not consider.” Abbasi, 582 U.S. at 140. If—and only if—the case is precisely
like Bivens, Passman, or Carlson in all these ways, we stop at step one and allow the claim
to proceed.
But if the case differs from the Bivens trio in any of these respects, and so would
extend Bivens to a new context, then we proceed to a second step. At that step, we ask
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whether any special factors counsel against extending Bivens. And really, “special factors”
is now a misnomer. Compare Passman, 442 U.S. at 246–47 (looking for “explicit
congressional declaration that” plaintiffs “may not recover money damages”), with Abbasi,
582 U.S. at 137 (asking whether “there are sound reasons to think Congress might doubt
the efficacy or necessity of a damages remedy”). Today, step two’s search for reasons
casts an even broader net than step one: If “there is any rational reason (even one) to think
that Congress is better suited” to provide a cause of action than we—including even “the
potential” that “judicial intrusion into a given field might be harmful or inappropriate”—
then we must deny the cause of action. Egbert, 596 U.S. at 496 (quotation omitted).
Creating causes of action is Congress’s job. So the Supreme Court “has repeatedly
emphasized that recognizing a cause of action under Bivens is a disfavored judicial
activity.” Goldey, 606 U.S. at 944 (cleaned up).
C. This is a new context because the officers were a fugitive task force and had a warrant
At a superficial level of generality, the actions of the Task Force officers bear at
least a little resemblance to those of the Bivens agents. Both cases involve claims of
unreasonable force in violation of the Fourth Amendment. Compare Bivens, 403 U.S. at
389–90, with Orellana, 2023 WL 6217447, at *2–3. But we do not consider context at a
superficially high level of generality. We must focus instead on the details. And there,
“[e]ven ‘small’ differences can be ‘meaningful.’” Ahmed v. Weyker, 984 F.3d 564, 568
(8th Cir. 2020) (quoting Abbasi, 582 U.S. at 149). Unlike Bivens, this case involves a
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different statutory scheme: U.S. Marshals working in a fugitive task force including
federal, state, and local agents. And the task force acted under the authority of a warrant.
So allowing a Bivens remedy here would expand it into a new context.
1. The Task Force’s unique statutory mandate implicates federalism concerns
Bivens is still “settled law” “in the search and seizure context.” Abbasi, 582 U.S. at
134. This means that the cause of action is available for “warrantless searches and
seizures” closely resembling Bivens done “by line officers performing routine criminal law
enforcement duties.” Hicks v. Ferreyra, 64 F.4th 156, 167 (4th Cir. 2023).
But this is no such case. To start, this case involves a “new category of defendants.”
Egbert, 596 U.S. at 492 (quoting Malesko, 534 U.S. at 68). The U.S. Marshals Service is
not first and foremost a law-enforcement agency. Its “primary role and mission” is more
specific: “to provide for the security and to obey, execute, and enforce all orders of” the
federal courts. 28 U.S.C. § 566(a). 4 The Service’s distinctive role and unique relationship
with the Judiciary give us reason to worry that we “likely cannot predict the systemwide
consequences of” extending Bivens to Marshals. Egbert, 596 U.S. at 493 (quotation
omitted). The “range of policy considerations” that this could involve, Bivens, 403 U.S. at
4 The Service is almost as old as Fourth Amendment itself. See Atwater v. City of Lago Vista, 532 U.S. 318, 339 (2001). A year after ratifying the Bill of Rights, Congress “vested federal marshals with ‘the same powers in executing the laws of the United States, as sheriffs and their deputies in the several states have by law, in executing the laws of their respective states.’” Id. (quoting Act of May 2, 1792, ch. 28, § 9, 1 Stat. 265); see Cunningham v. Neagle, 135 U.S. 1, 68 (1890). 11 USCA4 Appeal: 23-2224 Doc: 49 Filed: 07/30/2025 Pg: 12 of 20
407 (Harlan, J., concurring in the judgment), suggests that Congress may be “far more
competent than the Judiciary to carry out the necessary balancing,” Schweiker v. Chilicky,
487 U.S. 412, 423 (1988) (quotation omitted).
And although not every new defendant will make for a new context, this case
involves a different “statutory or other legal mandate under which the officer was
operating.” Abbasi, 582 U.S. at 140. Here, the Service operated under its congressional
mandate to coordinate federal, state, and local law enforcement agencies chosen by the
Attorney General to form joint fugitive task forces for the purpose of “locating and
apprehending fugitives.” 34 U.S.C. § 41503(a).
These joint task forces give us two more reasons to pause. First, they operate under
narrow, specialized mandates. These officers were not beat cops on patrol; they executed
a warrant as part of the Capital Area Regional Fugitive Task Force to “apprehend[] [a]
fugitive” at Congress’s and the Attorney General’s direction. 34 U.S.C. § 41503(a). This
activity lies far outside the “common and recurrent sphere of law enforcement” where
Bivens remains a “fixed principle.” Abbasi, 582 U.S. at 134.
Second, these task forces raise federalism concerns that ordinary federal law-
enforcement does not. They consist of officers from an array of federal, state, and local
agencies. See 34 U.S.C. § 41503(a); Robinson v. Sauls, 102 F.4th 1337, 1345 (11th Cir.
2024). And these officers don’t just work side-by-side; the Marshals have the authority to
federally deputize other officers on the task forces, bringing what would otherwise be state
action under a federal banner. 28 C.F.R. § 0.112; see Yassin v. Weyker, 39 F.4th 1086,
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1090–91 (8th Cir. 2022). This case makes for a good example: The team that entered
Orellana’s home included officers from eight federal and local agencies.
Just as the Supreme Court has declined to expand Bivens when international comity
is at stake, we decline to expand Bivens when state-federal relations are on the line. See
Hernandez, 589 U.S. at 103–04, 107–09, see also Dyer v. Smith, 56 F.4th 271, 280–81 (4th
Cir. 2022) (deciding national security considerations counseled against extending Bivens
to a Fourth Amendment claim against TSA agents). Instead, we join our sister circuits in
holding that these joint task forces are new Bivens contexts. See Logsdon v. U.S. Marshal
Serv., 91 F.4th 1352, 1358–59 (10th Cir. 2024) (finding the duty to partner with state and
local agencies “[o]f particular relevance” to finding that the Marshals Service is a new
context); see also Robinson, 102 F.4th at 1345; Cain v. Rinehart, No. 22-1893, 2023 WL
6439438, at *4 (6th Cir. July 25, 2023).
2. The Task Force operated pursuant to a warrant
Another reason to treat this case as a new Bivens context is that the officers acted
under a warrant. In a Fourth Amendment case, that can make all the difference.
“[S]earches and seizures inside a home without a warrant are presumptively unreasonable.”
Kentucky v. King, 563 U.S. 452, 459 (2011) (quoting Brigham City v. Stuart, 547 U.S. 398,
403 (2006)). By contrast, “[s]earches pursuant to a warrant will rarely require any deep
inquiry into reasonableness.” United States v. Leon, 468 U.S. 897, 922 (1984) (quoting
Illinois v. Gates, 462 U.S. 213, 267 (1983) (White, J., concurring in the judgment)).
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In Annappareddy v. Pascale, 996 F.3d 120 (4th Cir. 2021), we reasoned that this
Fourth Amendment distinction also affects the scope of Bivens. We observed that Bivens
“involved . . . the Fourth Amendment right to be free of unreasonable warrantless searches
and seizures,” yet Annappareddy “involve[d] searches and a seizure conducted with a
warrant.” 996 F.3d at 135. Even though the Annappareddy warrants were based on
“material false statements and omissions,” id. at 127, we stressed that “the Fourth
Amendment sharply distinguishes between with-warrant and warrantless searches, treating
the introduction of the warrant as a signal moment in the proceedings,” id. at 135–36. For
that reason, we explained, “the ‘right at issue’” in a warranted-seizure case is
“meaningfully different from the one at issue” in a warrantless-seizure case. Id. at 136
(quoting Abbasi, 582 U.S. at 140).
We reaffirmed this distinction in Hicks. “Bivens involved . . . the right to be free
from warrantless searches and seizures.” Hicks, 64 F.4th at 167. But “searches authorized
by a warrant” are different because “the decision to issue a warrant involves different
aspects of police work, including ‘information-gathering and case-building activities,’
which are different from the warrantless apprehension, detection, and other issues
presented in Bivens.” Id. (quoting Annappareddy, 996 F.3d at 136).
Today we again rely on this principle. The Task Force officers had a warrant to
search for Trinidad. 5 Under our precedents, that warrant means Orellana’s case involves a
different right—and different policy implications—than Bivens. See Hicks, 64 F.4th at 167
5 Unlike Annappareddy, no defect in the warrant is alleged here. 14 USCA4 Appeal: 23-2224 Doc: 49 Filed: 07/30/2025 Pg: 15 of 20
(explaining that Annappareddy and Bivens did not involve “the same principles of
constitutional criminal law”). And under Supreme Court precedent, that is enough to make
this a new context. Abbasi, 582 U.S. at 148; see Hernandez, 589 U.S. at 103.
*
To be sure, this case is not entirely unlike Bivens. But “[w]hen one or more
meaningful differences exist, it is not enough to identify a few similarities.” Ahmed, 984
F.3d at 570. The Task Force’s unique statutory mandate and the federalism concerns it
raises, plus its warrant to enter Orellana’s home, make this a new Bivens context twice
over. We therefore conclude that the district court erred when it determined that this case
fell within the original Bivens cause of action.
D. Special factors counsel against extending Bivens into this new context
Since we have determined that green-lighting Orellana’s claim would extend Bivens
to a new context, we proceed to step two and ask whether special factors counsel against
extending it. Although the Court “has not defined the phrase ‘special factors counselling
hesitation,’” Abbasi, 582 U.S. at 136, it has made clear that “separation-of-powers
principles” are the “central” consideration. Hernandez, 589 U.S. at 102 (quoting Abbasi,
582 U.S. at 135); Goldey, 606 U.S. at 944. “[I]f there is any reason to think that ‘judicial
intrusion’ into a given field might be ‘harmful’ or ‘inappropriate,’” or that there is even a
“‘potential’ for such consequences,” we won’t allow the plaintiff a Bivens remedy. Egbert,
596 U.S. at 496 (first quoting United States v. Stanley, 483 U.S. 669, 683 (1987); then
quoting Abbasi, 582 U.S. at 145); see also Mays, 70 F.4th at 205 (explaining that “even a
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single reason to pause” obligates us to stay our hand (quoting Egbert, 596 U.S. at 492)).
We do not “assess the costs and benefits of” those reasons. Egbert, 596 U.S. at 496. Our
sole task is to identify whether “even one” such reason exists. Id. If one does, we “cannot
afford a plaintiff a Bivens remedy.” Id.
We see multiple reasons here. For one, extending Bivens could interfere with the
relationship between the Marshals Service and its state and local partners by exposing
individual officers to potential loss. See Logsdon, 91 F.4th at 1358 (“Chilling participation
in joint task forces is therefore a potential cost of expanding Bivens to Deputy U.S.
Marshals.”); see also 28 C.F.R. § 50.15(c)(1) (“The Department of Justice may indemnify
[employees] . . . provided that the conduct . . . was taken within the scope of employment
and that such indemnification is in the interest of the United States.” (emphasis added)).
This risk of liability may also affect the way officers do their jobs. See Egbert, 596 U.S.
at 499 (citing Anderson v. Creighton, 483 U.S. 635, 638 (1987)). More still, as the Eleventh
Circuit observed, “Congress and the Executive Branch have created at least two
administrative procedures to review complaints of excessive force arising out of USMS-
led task force actions.” Robinson, 102 F.4th at 1346. The existence of such alternative
remedial procedures counsels against allowing Bivens suits even if such “procedures are
‘not as effective as an individual damages remedy.’” Goldey, 606 U.S. at 945 (quoting
Egbert, 596 U. S. at 498).
Other reasons to pause doubtless exist. But we need not scrutinize them all; even
one “rational reason” is enough. Egbert, 596 U.S. at 492. As in most every case, Congress
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is better suited to assess the consequences of extending Bivens to this new context. So we
decline to do so.
* * *
Evy Orellana suffered serious injuries when a tactical canine bit her as a U.S.
Marshals Fugitive Task Force executed a warrant to arrest her boyfriend. Although the
incident is tragic, it does not fall within the original Bivens cause of action. This is a new
context because the officers operated under a narrow and distinct statutory mandate and
because they were executing a warrant. And the Supreme Court has repeatedly counseled
against extending Bivens beyond the original case. Congress remains better suited to weigh
the consequences of extending Bivens into this new context; so we may not judicially
extend it. The decision below is
REVERSED.
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GREGORY, Circuit Judge, dissenting:
The majority has found that Evy Orellana does not have a cause of action under
Bivens, holding, amongst other things, that “allowing a Bivens remedy here would expand
it into a new context.” Maj. Op. at 11. But Orellana’s claim fits well within the context of
Bivens itself. I therefore dissent.
To begin, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), the Supreme Court recognized an implied cause of action, grounded
in the Fourth Amendment, against six Federal Bureau of Narcotics agents in their individual
capacities. There, the agents had shackled the defendant in front of his family, threatened
to arrest his entire family, searched his apartment without a search warrant, and arrested him
for alleged narcotics violations without a warrant or probable cause. Id. at 389.
This is materially no different than the claim Orellana has brought against the U.S.
Marshals. First, the fact that Orellana’s claim against the U.S. Marshals asserts a
constitutional right implicated in Bivens itself is a factor that weighs heavily in favor of
finding that Orellana’s claim arises in the Bivens context. Specifically, Orellana—like the
plaintiff in Bivens—argues that the arresting federal agents used unreasonable force in
attempting to make an arrest. This type of claim is permissible in the Bivens context, as
the Bivens Court found that the plaintiff was entitled to recover for “any injuries . . .
suffered as a result of the agents’ violation of the Fourth Amendment[,]” including injuries
arising from the plaintiff’s claim “that unreasonable force was employed in making the
arrest.” Bivens, 403 U.S. at 389, 397. The mere fact that this case involves a warrant does
not impact the Bivens inquiry or make it materially different. This is because Orellana is
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not challenging the existence, issuance, or execution of the warrant, or any information
gathering and case-building activities. Rather, Orellana’s claim is directly on par with
Bivens itself as her claims are grounded in unreasonable seizure and whether the force
applied by the U.S. Marshals was reasonable under the circumstances. Snowden v.
Henning, 72 F.4th 237, 247 (7th Cir. 2023), cert. denied sub nom. Henning V. Snowden,
No. 23-976, 2024 WL 4426536 (U.S. Oct. 7, 2024) (stating the fact that an officer had a
warrant was “not sufficient to affect the Bivens inquiry”); see also Logsdon v. United States
Marshal Serv., 91 F.4th 1352, 1357 (10th Cir. 2024) (finding, in the context of determining
whether a cause of action existed under Bivens, that a warrant had “no legal significance
in an excessive-force case”).
Second, just as in Bivens, this case involved the same type of federal officers—
namely, arresting agents—who carried out the same type of “official action”—namely,
effecting an arrest. See Ziglar v. Abbasi, 582 U.S. 120, 140 (2017). Indeed, our own
precedent even recognizes that, pursuant to Bivens, plaintiffs can hold federal agents
conducting routine police work accountable for violations of the Fourth Amendment. See
Hicks v. Ferreyra, 965 F.3d 302, 311 (4th Cir. 2020) (finding plaintiff’s case “appear[ed]
to represent not an extension of Bivens so much as a replay” as plaintiff sought “to hold
accountable line-level agents of a federal criminal law enforcement agency, for violations
of the Fourth Amendment, committed in the course of a routine law-enforcement action”);
see also Annappareddy v. Pascale, 996 F.3d 120, 134-35 (4th Cir. 2021) (finding plaintiff’s
claims presented a new context of Bivens on other grounds but held plaintiff’s claims
resembled Bivens because plaintiff sought “to hold accountable only line-level
19 USCA4 Appeal: 23-2224 Doc: 49 Filed: 07/30/2025 Pg: 20 of 20
investigative officers, not high-ranking officials”). In addition, allowing Orellana to
proceed with her Bivens claim would not risk “disruptive intrusion by the Judiciary into
the functioning of other branches,” Abbasi, 582 U.S. at 140, and the majority does not even
plausibly suggest that “state-federal relations” would be “on the line,” see Maj. Op. at 13,
if Orellana’s claim was allowed to proceed.
Third, finding that Orellana’s claim falls within Bivens itself would not disrupt
legitimate distinctions between Fourth Amendment claims that fall within the contours of
Bivens and those that do not. This is because the Supreme Court, as well as this Court, has
made clear that a Bivens claim is not permissible if the conduct at issue arises in different
circumstances that had not been previously contemplated in prior Bivens actions. But, in
contrast, it has been a longstanding practice to permit Bivens claims arising from the use
of excessive force in an arrest, as Orellana asserts. In other words, the claim that Orellana
has brought against the U.S. Marshals is not new and would not run afoul any standing
precedent.
The “distinctions” highlighted by the majority—namely, the existence of a warrant
and the fact that this case involves U.S. Marshals, see Maj. Op. at 3—are insufficient to
overcome the aforementioned factors that heavily weigh in favor of finding there is no
meaningful difference between the context of Bivens and that of this case. As such,
Orellana should be permitted to move forward with her Bivens claim. Therefore, I dissent.