Appellate Case: 23-7008 Document: 010110994748 Date Filed: 02/05/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 5, 2024
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
DONALD RAY LOGSDON, JR.,
Plaintiff - Appellant,
v. No. 23-7008
UNITED STATES MARSHAL SERVICE; PHILIP BRIAN GILLIAM, Deputy, United States Marshal; JERE SMITH, United States Marshal; CODY VAUGHN, Task Force Officer, United States Marshal Service,
Defendants - Appellees.
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ACLU, ACLU OF OKLAHOMA, ACLU OF COLORADO, ACLU OF KANSAS, ACLU OF NEW MEXICO, ACLU OF UTAH & ACLU OF WYOMING; INSTITUTE FOR JUSTICE,
Amici Curiae. _________________________________
Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:21-CV-00253-KHV-TJJ) _________________________________
Kevin E. Jason, NAACP Legal Defense & Educational Fund, Inc., New York, New York (Janai S. Nelson, Samuel Spital, and Ashok Chandran, NAACP Legal Defense & Educational Fund, Inc., New York, New York; Christopher Kemmitt, NAACP Legal Defense & Educational Fund, Inc., Washington, D.C, and Wil M. Crawford, Indian & Appellate Case: 23-7008 Document: 010110994748 Date Filed: 02/05/2024 Page: 2
Environmental Law Group, PLLC, Ada, Oklahoma, with him on the briefs) for Plaintiff - Appellant.
Dana L. Kaersvang, United States Department of Justice, Washington, D.C. (Brian M. Boynton, Principal Deputy Assistant Attorney General, Christopher J. Wilson, United States Attorney, Barbara L. Herwig, and Edward Himmelfarb, Attorneys, Appellate Staff, Mary H. Mason, and Evelyn S. Yarborough, Attorneys, Torts Branch, Washington, D.C., with her on the briefs) for Defendants - Appellees.
Brett M. Kaufman, Elizabeth Gyori, ACLU Foundation, New York, New York (joined by Megan Lambert, ACLU of Oklahoma, Oklahoma City, Oklahoma, Tim Macdonald, ACLU of Colorado, Denver, Colorado, Cecillia D. Wang, ACLU Foundation, San Francisco, California, Sharon Brett, ACLU of Kansas, Overland Park, Kansas, María Mártinez Sánchez, ACLU of New Mexico, Albuquerque, New Mexico, Stephanie Amiotte, ACLU of Wyoming, Jackson, Wyoming, John Mejia, ACLU of Utah Foundation, Salt Lake City, Utah); filed a brief on behalf of Appellant, for Amici Curiae ACLU, ACLU of Oklahoma, ACLU of Colorado, ACLU of Kansas, ACLU of New Mexico, ACLU of Utah, and ACLU of Wyoming.
Trace Mitchell, Anya Bidwell, Patrick Jaicomo, Institute for Justice, Arlington, Virginia; filed a brief on behalf of Appellant, for Amicus Curiae Institute for Justice. _______________________________
Before HARTZ, MORITZ, and ROSSMAN, Circuit Judges. _________________________________
HARTZ, Circuit Judge. _________________________________
In Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), the Supreme Court
first created a cause of action against federal agents for a violation of the Bill of
Rights. The opinion held that agents of the Federal Bureau of Narcotics could be
liable for damages for an unlawful warrantless arrest and search and for employing
unreasonable force in making the arrest. See id. at 389–90.
But, at least in the view of the Supreme Court in recent decades, that opinion
has not worn well. Although the Court recognized causes of action under Bivens in
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two subsequent cases—a congressional staffer’s Fifth Amendment Due Process sex-
discrimination claim against a Member of Congress, see Davis v. Passman, 442 U.S.
228 (1979), and a claim against federal prison officials under the Eighth Amendment
for inadequate care of an inmate, see Carlson v. Green, 446 U.S. 14 (1980)—it is on
course to treating Bivens as a relic of the 20th century. This development has been
gradual, but relentless. Without explicitly overruling its three acknowledged
precedents, the Court has shown an increasing willingness to distinguish them, now
stating that the ultimate question to ask when determining whether the courts should
recognize a Bivens cause of action not created by Congress is ordinarily only
“whether there is any reason to think that Congress might be better equipped to create
a damages remedy.” Egbert v. Boule, 596 U.S. 482, 492 (2022). And the
circumstances in which the answer to the question is “no” appears to comprise a null
set. See id. at 503. (Gorsuch, J., concurring) (“When might a court ever be ‘better
equipped’ than the people’s elected representatives to weigh the ‘costs and benefits’
of creating a cause of action? It seems to me that to ask the question is to answer it.
To create a new cause of action is to assign new private rights and liabilities—a
power that is in every meaningful sense an act of legislation.”); see also Silva v.
United States, 45 F.4th 1134, 1140 (10th Cir. 2022) (“[W]e are left in no doubt that
expanding Bivens is not just ‘a disfavored judicial activity,’ it is an action that is
impermissible in virtually all circumstances.” (quoting Egbert, 596 U.S. at 491)
(citation omitted)). The Court has said in effect that almost any difference between
the case at hand and the three Court precedents can justify rejecting a cause of action.
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See Egbert, 596 U.S. at 503 (Gorsuch, J., concurring) (“Candidly, I struggle to see
how this set of facts differs meaningfully from those in Bivens itself.”).
And, perhaps even more striking, the Court has justified a departure from
those precedents even when the facts are virtually the same if the government can
provide a reason for not recognizing a cause of action that was not considered in the
applicable precedent. Thus, in Egbert itself the Court considered an excessive-force
claim, similar to the one in Bivens, against a federal officer. See Egbert, 596 U.S. at
495 (“Bivens and this case do involve similar allegations of excessive force and thus
arguably present almost parallel circumstances or a similar mechanism of injury.”
(internal quotation marks omitted)). But it held that the court of appeals erred by
recognizing a cause of action under Bivens, distinguishing Bivens based on facts that
have no bearing on the elements of an excessive-force claim: the incident arose in the
“border-security context,” and Congress had created remedies for misconduct by
government agents. See id. at 494. Given such hurdles placed in the way of a Bivens
cause of action, Mr. Logsdon has no claim.
I. BACKGROUND
A. Factual Background
Supplementing the allegations of the complaint (which we take as true) with
undisputed facts, we briefly summarize the relevant facts. On March 5, 2020, Deputy
United States Marshal Phillip Gilliam and Special Deputy United States Marshals
(Task Force Officers) Jere Smith and Cody Vaughn (Defendants) were executing a
state-court warrant for the arrest of Mr. Logsdon on a charge of assault with a
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dangerous weapon. They secretly approached him after dark while he was working
on a generator outside a friend’s house. Deputy Gilliam ran up behind him and
kicked him in the face, rendering him unconscious. The three officers then stomped
on him for two minutes.
B. Procedural History
Mr. Logsdon filed a pro se lawsuit in the United States District Court for the
Eastern District of Oklahoma against the United States Marshal Service (USMS) and
the three deputies, asserting a claim under Bivens based on the alleged excessive use
of force. After the district court dismissed USMS as an improper party for a Bivens
claim, Defendants moved to dismiss on the ground that Bivens does not provide a
remedy for Mr. Logsdon’s allegations against them, or, alternatively, on the ground
that they are entitled to qualified immunity. The district court overruled the motion
on both grounds.
Defendants then filed a motion to reconsider that ruling as to their Bivens
argument. The district court sustained the motion to reconsider and dismissed the
case. Mr. Logsdon now appeals that order, arguing that the district court erred on the
merits and abused its discretion by considering the motion to reconsider.
II. DISCUSSION
A. The Bivens Claim
In Egbert the Supreme Court recognized that it had previously analyzed
whether to recognize a proposed Bivens claim by conducting a two-step analysis. See
596 U.S. at 492. “First,” it said, “we ask whether the case presents a new Bivens
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context—i.e., is it meaningfully different from the three cases in which the Court has
implied a damages action.” Id. (brackets and internal quotation marks omitted). Then,
if it is a new context, “a Bivens remedy is unavailable if there are special factors
indicating that the Judiciary is at least arguably less equipped than Congress to weigh
the costs and benefits of allowing a damages action to proceed.” Id. (internal
quotation marks omitted). But it is hard to see the difference between the analyses
conducted in the two steps. Regarding the first step, the Court has said:
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.
Ziglar v. Abbasi, 582 U.S. 120, 139–40 (2017) (emphasis added). If there was any
doubt concerning whether the “special factors” in the final catchall clause describing
the first step of the analysis were somehow different from the “special factors” to be
considered in the second step, that doubt was dissipated when Egbert said: “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.” 596 U.S. at 492.
In this case we conclude our analysis should focus on that single question. We
address three features of this case not considered by the Supreme Court in Bivens:
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(1) the nature of the law-enforcement conduct, (2) the category of defendant, and
(3) the existence of other remedies for misconduct.
The law-enforcement conduct at issue in Bivens involved the warrantless entry
into a home. See Bivens, 403 U.S. at 388. Here, the deputy marshals executed an
arrest warrant outside the house of Mr. Logsdon’s friend. Mr. Logsdon contends that
the warrant and location of the arrest have no legal significance in an excessive-force
case. We agree, and we give little weight to this distinction. See Snowden v. Henning,
72 F.4th 237, 247 (7th Cir. 2023) (“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.”). 1 To be sure, there is substantial authority to the contrary. Several other
circuits have said that a new Bivens context exists when federal officials execute a
valid warrant. See Annappareddy v. Pascale, 996 F.3d 120, 135 (4th Cir. 2021)
(Fourth Amendment claims asserting that investigators falsified evidence and
affidavits to obtain search and arrest warrants created a new Bivens context because
Bivens involved “the Fourth Amendment right to be free of unreasonable warrantless
1 In addition to Snowden, Mr. Logsdon cites other cases in which Bivens claims were examined on their merits even though officers had a warrant or acted in a place where the plaintiff lacked a reasonable expectation of privacy. But those cases are irrelevant because they each considered only whether a Bivens claim was defeated by qualified immunity without considering whether Bivens should apply under the circumstances. See Wilson v. Layne, 526 U.S. 603, 605–06 (1999); Thomas v. Durastani, 607 F.3d 655, 659 (10th Cir. 2010); Salmon v. Schwarz, 948 F.2d 1131, 1135 (10th Cir. 1991); Mick v. Brewer, 76 F.3d 1127, 1129 (10th Cir. 1996); Wellington v. Daza, No. 21-2052, 2022 WL 3041100, at *1 & n.1 (10th Cir. Aug. 2, 2022) (unpublished); Alvarado-Escobedo v. United States, 817 Fed. App’x. 536, 539–40 (10th Cir. 2020); Serrano v. United States, 766 Fed. App’x 561, 564 (10th Cir. 2019). Page 7 Appellate Case: 23-7008 Document: 010110994748 Date Filed: 02/05/2024 Page: 8
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)
(Fourth Amendment claim alleging officers fabricated evidence was “meaningfully
different from the Fourth Amendment claim at issue in Bivens” in part because the
plaintiff did not allege that officers entered his home without a warrant); Cain v.
Rinehart, No. 22-1893, 2023 WL 6439438, at *3 (6th Cir. July 25, 2023)
(unpublished) (unlawful entry into a residence to execute an arrest warrant of a third-
party who officers believed resided there was a new Bivens context). And some
circuits have said that a new context arises when the violation does not occur in the
plaintiff’s home. See Mejia v. Miller, 61 F.4th 663, 668 (9th Cir. 2023) (Fourth
Amendment claim based on excessive force created a new Bivens context because
“unlike Bivens, none of the events in question occurred in or near [the plaintiff]’s
home. The entire incident occurred on public lands managed by [the Bureau of Land
Management] and the National Park Service, a place where [the plaintiff] had no
expectation of privacy.”); Byrd v. Lamb, 990 F.3d 879, 882 (5th Cir. 2021) (“Byrd’s
lawsuit differs from Bivens in several meaningful ways [, including that the] case
arose in a parking lot, not a private home as was the case in Bivens.”). We need not,
however, dwell on our differences with other circuits on these points, because there
are other sufficient grounds for holding that Mr. Logsdon has no claim under Bivens
in this case.
More compelling as a special factor is that agents of the USMS are a new
category of defendant. See Egbert, 596 U.S. at 492 (involvement of a “new category
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of defendants” is a new context that presents “potential special factors that previous
Bivens cases did not consider” (internal quotation marks omitted)). Mr. Logsdon
argues that a new agency does not create a new Bivens context when the defendants
are “rank-and-file federal officers.” Aplt. Br. at 28, 32. We disagree.
After all, the defendant in Egbert was a rank-and-file Border Patrol agent. See
Egbert, 596 U.S. at 486. And since that decision two other circuits have held that
there was a new context when confronting lower-level officers from a different
agency. See Mejia, 61 F.4th at 668 (in rejecting Bivens claim against Bureau of Land
Management [BLM] officers, court notes that Egbert “identifie[d] the legal mandate
under which the officer was operating as an example of a new context” and that
plaintiff did “not point to any reason to believe . . . that BLM has the same mandate
as agencies enforcing federal anti-narcotics law [as in Bivens]” (internal quotation
marks omitted); Cain, 2023 WL 6439438, at *4 (unpublished) (“Another meaningful
distinction between this case and Bivens is the federal agency involved. This case
involved the U.S. Marshals Service, while Bivens concerned the actions of agents of
the Federal Bureau of Narcotics. Thus, allowing [the plaintiff]’s claim would extend
Bivens to ‘a new category of defendants,’ which Egbert identified as a new context.”
(quoting Egbert, 596 U.S. at 492)). 2
2 Mr. Logsdon argues that the Supreme Court and this court have already recognized Bivens claims against USMS officers. But none of the cited cases is relevant because none considered whether there was a new Bivens context. Instead, they considered whether Deputy U.S. Marshals were entitled to qualified immunity in a Bivens action, see Wilson, 526 U.S. at 605–06; Alvarado-Escobedo, 817 Fed. App’x at 539–40; Serrano, 766 F. App’x at 564, whether the plaintiff adequately alleged a Page 9 Appellate Case: 23-7008 Document: 010110994748 Date Filed: 02/05/2024 Page: 10
Of particular relevance here is a duty of the USMS that was not a factor
considered in Bivens. The USMS is statutorily required to partner with state and local
law-enforcement authorities to create Fugitive Apprehension Task Forces, which are
directed and coordinated by the USMS. See 34 U.S.C. § 41503(a). And it has the
authority (which was exercised in this case) to federally deputize officers from other
jurisdictions to perform the functions of a Deputy U.S. Marshal. See 28 C.F.R.
§ 0.112(b). These officers act under color of federal law when acting in that capacity.
See Yassin v. Weyker, 39 F.4th 1086, 1090–91 (8th Cir. 2022). Chilling participation
in joint task forces is therefore a potential cost of expanding Bivens to Deputy U.S.
Marshals. See Cain, 2023 WL 6439438, at *4 (“[A]llowing claims for damages
against members of federal fugitive-apprehension task forces could impair the
government’s recruitment of officers to participate in those task forces and could
negatively affect task members’ performance of their duties.”); see also Egbert, 596
U.S. at 499 (“Recognizing any new Bivens action entails substantial social costs,
including the risk that fear of personal monetary liability and harassing litigation will
unduly inhibit officials in the discharge of their duties.” (brackets and internal
quotation marks omitted)). 3 We are confident that the Supreme Court would hold
constitutional violation, Smith v. Arguello, 415 F. App’x 57, 60–61 (10th Cir. 2011), or whether the plaintiff sued the defendants in their individual capacities, Trapp v. U.S. Marshals Serv., 139 F. App’x 12, 14–15 (10th Cir. 2005). 3 Mr. Logsdon argues that Defendants forfeited this argument by failing to raise it before the district court. But the Supreme Court, even when reversing the lower court, considered and rejected a similar forfeiture argument in Egbert, and we do the same here. See Egbert, 596 U.S. at 497 n.3 (“Because recognizing a Bivens Page 10 Appellate Case: 23-7008 Document: 010110994748 Date Filed: 02/05/2024 Page: 11
“that the Judiciary is not undoubtedly better positioned than Congress to authorize a
damages action in [this] context,” Egbert, 596 U.S. at 495, where the impact of
potential liability on cooperation among law-enforcement agencies needs to be
assessed.
A second independent ground for not recognizing a Bivens action in this case
is that the availability of alternative remedies for misconduct by Deputy U.S.
Marshals suggests that this court should not be the institution to create a remedy. “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.” Id. at 493 (internal quotation marks omitted). “So long as Congress or the
Executive has created a remedial process that it finds sufficient to secure an adequate
level of deterrence, the courts cannot second-guess that calibration by superimposing
a Bivens remedy. That is true even if a court independently concludes that the
Government’s procedures are not as effective as an individual damages remedy.” Id.
at 498 (internal quotation marks omitted). In Egbert the Court said that an
administrative grievance procedure was a sufficient alternative remedy without
describing how the procedure operated or stating what type of penalty was available.
cause of action is an extraordinary act that places great stress on the separation of powers, we have a concomitant responsibility to evaluate any grounds that counsel against Bivens relief.” (citations and internal quotation marks omitted)). Moreover, this court has repeatedly stated that we can affirm the judgment below on any ground supported by the record, so long as addressing the ground is fair to the opposing party. See, e.g., Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1088 (10th Cir. 2006).
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All it said about the remedy was: “The U.S. Border Patrol is statutorily obligated to
control, direct, and supervise all employees. And, by regulation, Border Patrol must
investigate alleged violations of the standards for enforcement activities and accept
grievances from any persons wishing to lodge a complaint.” Id. at 497 (cleaned up);
cf. Silva, 45 F.4th at 1141 (10th Cir. 2022) (citing Corr. Servs. Corp. v. Malesko, 534
U.S. 61, 74 (2001), in holding that the Bureau of Prisons’ Administrative Remedy
Program was adequate). The Court rejected the plaintiff’s argument that the process
was inadequate because he had no right to participate in it or seek judicial review of
an adverse determination, explaining that “Bivens is concerned solely with deterring
the unconstitutional acts of individual officers—i.e., the focus is whether the
Government has put in place safeguards to prevent constitutional violations from
recurring.” Egbert, 596 U.S. at 498 (brackets and internal quotation marks omitted).
Here, as several other courts have already held since Egbert, the internal
USMS grievance procedure and the Department of Justice’s Office of the Inspector
General (OIG) investigation procedure are adequate alternative remedies. See Cain,
2023 WL 6439438 at *4; Robinson v. Heinze, 655 F. Supp. 3d 1276, 1284 (N.D. Ga.
2023); Lewis v. Westfield, 640 F. Supp. 3d 249, 254–55 (E.D.N.Y. 2022); McIntyre v.
U.S. Marshal Serv., No. 18-1268, 2023 WL 2447424, at *6–7 (D.N.J. 2023).
The director of the USMS “shall supervise and direct the [USMS],” see 28
U.S.C. § 561(g), including by investigating “alleged improper conduct on the part of
[USMS] personnel,” 28 C.F.R. § 0.111(n). Individuals may submit a complaint by
filling out an online form. See Complaint Regarding United States Marshals Service
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(USMS) Personnel or Programs, United States Marshals Service (last visited Jan. 5,
2024), https://www.usmarshals.gov/sites/default/files/media/document/complaint-
form.pdf [https://perma.cc/UW46-7ZBC]. “[T]he USMS may share the information
with law enforcement agencies investigating a violation of law (whether criminal,
civil, and/or administrative).” Id. “All complaints of employee misconduct will be
investigated by the appropriate agency or office. . . . [C]omplaints against [Task
Force Officers] will be referred to the Investigative Operations Division . . . .”
Misconduct Investigations, Policy Directive 2.3, U.S. Marshal Service, 1 (Oct. 7,
2020), https://www.usmarshals.gov/sites/default/files/media/document/usms-policy-
directive-misconduct-investigations.pdf [https://perma.cc/M78C-WGBB]. And
“[i]ntentional, reckless or negligent violation[s] of rules governing searches and
seizures” are punishable by reprimand or removal. Table of Disciplinary Offenses
and Penalties, United States Marshals Service, 6 (last visited Jan. 5, 2024),
https://www.usmarshals.gov/sites/default/files/media/document/united-states-
marshals-guidance-table-of-disciplinary-offenses-and-penalties.pdf
[https://perma.cc/4CWJ-WG4R].
Moreover, the USMS is a bureau within the Department of Justice (DOJ), see
28 U.S.C. § 561(a), and the DOJ Inspector General “may investigate allegations of
criminal wrongdoing or administrative misconduct by an employee of the Department
of Justice,” 5 U.S.C. § 413(b)(2). A person can report misconduct “related to” the
USMS to OIG by submitting an online complaint. Submitting a Complaint, U.S.
Department of Justice, Office of the Inspector General (last visited Jan 5, 2024),
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https://oig.justice.gov/hotline/submit_complaint [https://perma.cc/K4WK-2M3T].
OIG investigations “sometimes lead to criminal prosecution or civil or administrative
action.” Criminal and Civil Cases, U.S. Department of Justice, Office of the
Inspector General (last visited Jan. 5, 2024),
https://oig.justice.gov/investigations/criminal_and_civil_cases
[https://perma.cc/BVR7-G7DL]. If the OIG does not investigate the allegation, it may
refer the complaint to the internal-affairs office of the relevant DOJ component (here,
the USMS). Report to Congress on Implementation of Section 1001 of the USA
PATRIOT Act, No. 22-102, U.S. Department of Justice, Office of the Inspector
General, 3–4 (Sept. 2022), https://oig.justice.gov/sites/default/files/reports/22-
102.pdf [https://perma.cc/YB8L-CYV2].
Mr. Logsdon makes some cogent arguments challenging the efficacy of these
administrative remedies. But those arguments are addressed to the wrong audience.
The Supreme Court has made clear that it is not the judiciary’s function to assess the
adequacy of executive orders or legislative remedies in deterring constitutional
violations that might be remedied through a Bivens-type suit. Mr. Logsdon also
contends that there is nothing new about the OIG remedy, noting that the Supreme
Court has reaffirmed its three Bivens precedents since the initial legislative creation
of Offices of the Inspector General. But the failure of any of those precedents, or any
reaffirmations of those precedents, to consider this legislation is dispositive. After
all, the Supreme Court has said that a departure from the Bivens precedents may be
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justified by “the presence of potential special factors that previous Bivens cases did
not consider.” Ziglar, 582 U.S. at 140.
B. The Motion to Reconsider
Finally, we reject Mr. Logsdon’s argument that the district court abused its
discretion when it granted Defendants’ motion to reconsider. He contends that the
motion failed to satisfy requirements limiting when a motion to reconsider is proper.
But “‘every order short of a final decree is subject to reopening at the discretion of
the district judge.’” Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005)
(quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12
(1983)). Caselaw relied on by Mr. Logsdon regarding postjudgment motions, such as
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000), is
inapposite.
III. CONCLUSION
We AFFIRM the judgment below.
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