USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 1 of 17
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-6109
RAYMOND TATE,
Plaintiff - Appellant,
v.
D. J. HARMON, Regional Director; M. BRECKON, Warden; ROGER MULLINS, Unit Manager; RODNEY COLLINS, Case Manager; DINK WILLIS, Counselor; B. JOHNSON, Senior Officer; J. WOODWARD, Cook Foreman; JOHN DOE, Correctional Officer; M. HAMILTON, Lieutenant; S. W. WHITE, Property Officer; S. HUTCHINS, Correctional Officer; J. ROBBINS, Correctional Officer; UNITED STATES OF AMERICA,
Defendants - Appellees.
------------------------------------------------
RODERICK & SOLANGE MACARTHUR JUSTICE CENTER; RIGHTS BEHIND BARS,
Amici Supporting Appellant.
Appeal from the United States District Court for the Western District of Virginia at Roanoke. Norman K. Moon, Senior District Judge. (7:19-cv-00609-NKM-JCH)
Argued: October 25, 2022 Decided: December 13, 2022
Before NIEMEYER, HARRIS, and HEYTENS, Circuit Judges. USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 2 of 17
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Harris and Judge Heytens joined.
ARGUED: Daniel Scott Harawa, WASHINGTON UNIVERSITY SCHOOL OF LAW, Saint Louis, Missouri, for Appellant. Krista Consiglio Frith, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellees. ON BRIEF: Christopher R. Kavanaugh, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellees. David Shapiro, Roderick and Solange MacArthur Justice Center, NORTHWESTERN PRITZKER SCHOOL OF LAW, Chicago, Illinois; Samuel Weiss, RIGHTS BEHIND BARS, Washington, D.C., for Amici Curiae.
2 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 3 of 17
NIEMEYER, Circuit Judge:
The issue before us is whether an inmate has a cause of action under the Eighth
Amendment for money damages against federal prison officials based on “degenerate”
conditions of confinement. Despite the absence of any statutory authority for such a claim,
the inmate contends that he has a cause of action under Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971), and its progeny. And if his claim is not authorized
by the existing Bivens cases, he requests that we extend Bivens to cover his claim, which,
he argues, would only be a “modest” extension of Bivens.
We conclude that the inmate’s claim is, under the applicable standard, different from
any Supreme Court decision finding a Bivens cause of action and that the relief he seeks in
this new context should be provided by Congress, if at all. Our conclusion is based on the
broad nature of the inmate’s claim and the separation-of-powers implications of
recognizing a Bivens cause of action in the new context of his claim. Accordingly, we
affirm the district court’s order dismissing his claim.
I
Raymond Tate, an inmate at U.S. Penitentiary Lee in western Virginia, commenced
this action pro se against officials and employees of the Federal Bureau of Prisons, seeking
money damages and other relief against the defendants, based on the manner in which he
was treated in prison and the conditions of his confinement. His highly-detailed 25-page
complaint, plus 29 exhibits, catalogs a broad range of engagements with prison officials,
3 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 4 of 17
grievance proceedings, disciplinary actions, and conditions of confinement, all to support
his claims that his First, Fifth, and Eighth Amendment rights were violated.
More particularly, Tate alleged that he was sent to the prison’s Special Housing Unit
as punishment after a correctional officer filed a retaliatory incident report that falsely
claimed that Tate had made threatening and sexually aggressive comments to the officer
while also behaving uncooperatively during a headcount. He alleged that the conditions in
the Special Housing Unit to which he was sent were so degrading and detrimental that they
constituted cruel and unusual punishment, in violation of the Eighth Amendment. He
alleged that his cell was filthy and covered with mold; that the temperatures in his cell
could be extraordinarily cold; that he was given soiled and inadequate bedding; that he was
provided undersized toilet paper and a virtually unusable toothbrush; that he was not
provided adequate cleaning supplies; that prison guards made it difficult or impossible for
him to use the one hour per day that he was supposed to be allowed outside his cell; and
that prison guards intentionally endangered him by falsely telling other inmates that he had
exposed himself and made sexual overtures to male prison guards. And for authorization
of his claim for money damages, he relied on Bivens.
The defendants filed a motion to dismiss, arguing, as relevant here, that Tate’s
claims were not cognizable under Bivens.
The district court granted the defendants’ motion and dismissed Tate’s action. The
court concluded that Tate’s claims under the First, Fifth, and Eighth Amendments “ar[o]se
in a context different than the claims previously recognized by [the Supreme Court in its
Bivens cases].” The court also declined “to recognize a new remedy in any of the new
4 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 5 of 17
contexts in which Tate’s claims ar[o]se, including his First Amendment and Fifth
Amendment claims, as well as any conditions-of-confinement claim under the Eighth
Amendment.” Tate filed a motion for reconsideration, which the court also denied. From
the district court’s order dated December 7, 2020, Tate filed this appeal.
Thereafter, we appointed counsel * to represent Tate on appeal and address whether
“a Bivens remedy presently exists for Eighth Amendment claims alleging unlawful
conditions of confinement.” With counsel, Tate now contends that he is entitled to bring a
Bivens action under the Eighth Amendment based on Carlson v. Green, 446 U.S. 14 (1980),
and Farmer v. Brennan, 511 U.S. 825 (1994), or, if his claims differ from Carlson and
Farmer, that we should extend Bivens to cover his claim.
II
Tate argues that he is entitled to a Bivens remedy to remedy wrongs for violating
his Eighth Amendment rights when “Federal prison officials exposed him to conditions
that posed a constitutionally unacceptable risk to his health and safety and took deliberate
actions that exposed him to a substantial risk of serious physical harm.” He maintains that
his conditions-of-confinement claim “fits well within the class of Bivens actions
acknowledged by the Supreme Court” in Carlson and Farmer. Alternatively, he argues
that if his claim is found to arise in a new Bivens context, we should conclude that “no
special factors counsel against recognizing what would be at most a modest extension of
* Daniel Scott Harawa, Esq., has well represented Tate on appeal, and we are grateful for his important service both to Tate and to the court. 5 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 6 of 17
extant Bivens actions.” Two issues are thus presented — (1) whether Tate’s conditions-of-
confinement claim falls within the context of Bivens and its progeny and, if not, (2) whether
the district court erred in refusing to extend Bivens to provide a damages remedy for his
claim.
A
Before Bivens, plaintiffs had the statutory authority under 42 U.S.C. § 1983 to sue
state officials for money damages when the officials violated plaintiffs’ constitutional
rights under color of state law. But no statutory counterpart existed for plaintiffs to sue
federal officials for money damages for violating their constitutional rights.
In Bivens, the Supreme Court held for the first time that even though Congress had
not provided any statutory authority for such actions, the plaintiff had an implied cause of
action under the Fourth Amendment that entitled him to sue federal officials for money
damages arising from an unreasonable search and seizure. Even though the Fourth
Amendment provided no such remedy explicitly, the Court found that a remedy was
implied under general principals of federal jurisdiction to redress wrongs that otherwise
would have been left unredressed. Bivens, 403 U.S. at 396–97.
After Bivens, the Court found two more implied causes of action for money damages
under the Fifth and Eighth Amendments. In Davis v. Passman, 442 U.S. 228 (1979), the
Court allowed a claim for money damages made by a former congressional administrative
assistant who alleged that her employer, a member of Congress, had terminated her
employment because of her sex, in violation of the equal protection component of the Fifth
6 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 7 of 17
Amendment’s Due Process Clause. And in Carlson v. Green, 446 U.S. 14 (1980), the
Court allowed a claim under the Eighth Amendment for money damages by an inmate’s
estate against prison officials who allegedly acted with deliberate indifference in failing to
treat the inmate’s asthma, leading to his death.
But in the 42 years following Carlson, which was decided in 1980, the Court has
“consistently rebuffed” every request — 12 of them now — to find implied causes of action
against federal officials for money damages under the Constitution. Hernandez v. Mesa,
140 S. Ct. at 735, 743 (2020); see also Egbert v. Boule, 142 S. Ct. 1793, 1799 (2022). And
in the last 5 years in particular, it has handed down a trilogy of opinions not only expressing
regret over its Bivens cases but also demonstrating hostility to any expansion of them. See
Ziglar v. Abassi, 137 S. Ct. 1843, 1857 (2017) (noting that “expanding the Bivens remedy
is now a disfavored judicial activity” (cleaned up)); Hernandez, 140 S. Ct. at 742–43
(noting that if its “three “Bivens cases had been decided today, it is doubtful that we would
have reached the same result” (cleaned up)); Egbert, 142 S. Ct. at 1802 (noting, “Now long
past the heady days in which this Court assumed common-law powers to create causes of
action [as in Bivens], we have come to appreciate more fully the tension between judicially
created causes of action and the Constitution’s separation of legislative and judicial power”
(cleaned up)). And the Court’s recent admonitions are clear: “[T]he Judiciary’s authority
to [create causes of action under the Constitution] is, at best, uncertain,” Egbert, 142 S. Ct.
at 1803; courts must beware of “arrogating legislative power,” Hernandez, 140 S. Ct. at
741; and “our watchword is caution,” id. at 742; Egbert, 142 S. Ct. at 1803.
7 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 8 of 17
In its trilogy, the Court explained the reasons for the “notable change in [its]
approach” to Bivens actions. Ziglar, 137 S. Ct. at 1857. It stated that Bivens was decided
in an era when the Court was more generally willing to find implied causes of action, id.
at 1855, and that the Court has since then come “to appreciate more fully the tension
between this practice and the Constitution’s separation of legislative and judicial powers,”
Hernandez, 140 S. Ct. at 741; see also Egbert, 142 S. Ct. at 1802. It observed that because
“creating a cause of action is a legislative endeavor,” “the Judiciary’s authority to do so at
all is, at best, uncertain.” Egbert, 142 S. Ct. at 1802–03 (emphasis added). It explained:
[I]t 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.
Ziglar, 137 S. Ct. at 1856.
Nonetheless, the Court elected not to overrule its three Bivens cases, although some
members expressed the view that “the time has come to consider discarding the Bivens
doctrine altogether.” Hernandez, 140 S. Ct. at 750 (Thomas, J., concurring, joined by
Gorsuch, J.). The Court did, however, impose a highly restrictive analysis for Bivens cases
by (1) narrowing the precedential scope of Bivens, Davis, and Carlson and (2) imposing a
broad standard of criteria that, if satisfied, require courts to reject any expansion of Bivens
remedies.
To this end, the Court prescribed “a two-step inquiry.” Hernandez, 140 S. Ct. at
743. First, a court must determine whether a claim falls within the causes of action
authorized under the Supreme Court’s three Bivens cases or whether it “arises in a ‘new
8 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 9 of 17
context’ or involves a ‘new category of defendants.’” Hernandez, 140 S. Ct. at 743
(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). The Court explained that
its “understanding of a ‘new context’ is broad,” thus requiring the scope of the existing
Bivens causes of action to be construed narrowly. Id. A context is new, the Court
explained, when it is “different in a meaningful way from previous Bivens cases decided
by [the] Court.” Ziglar, 137 S. Ct. at 1859.
If, following the first step, the court finds that a claim arises in a “new context” and
thus is different from the three Bivens cases, it must proceed to the “second step and ask
whether there are any special factors that counsel hesitation about granting the extension”
of Bivens. Hernandez, 140 S. Ct. at 743 (cleaned up). And if there is “reason to pause
before applying Bivens in a new context or to a new class of defendants,” the request to
extend Bivens should be rejected. Id. Moreover, the Court has directed that the “special
factors” inquiry must center on “separation-of-powers principles.” Id. (quoting Ziglar, 137
S. Ct. at 1857). As the Court explained:
We thus consider the risk of interfering with the authority of other branches, and we ask whether “there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy,” and “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.”
Id. (citation omitted); see also Ziglar, 137 S. Ct. at 1858.
Against this now critical condition of Bivens jurisprudence and the caution that the
Court has mandated when applying it, courts are clearly warned to act with utmost
hesitation when faced with actions that do not fall precisely under Bivens, Davis, or
Carlson. And we have so proceeded. See, e.g., Annappareddy v. Pascale, 996 F.3d 120
9 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 10 of 17
(4th Cir. 2021) (rejecting a requested extension of Bivens to claims of wrongdoing by
prosecutors and criminal investigators, allegedly in violation of the Fourth and Fifth
Amendments); Earle v. Shreves, 990 F.3d 774 (4th Cir. 2021) (rejecting a requested
extension of Bivens to claims of wrongful retaliation by prison officials for filing
grievances, allegedly in violation of the First Amendment); Tun-Cos v. Perrotte, 922 F.3d
514 (4th Cir. 2019) (rejecting a requested extension of Bivens to claims of wrongful
searches and seizures by Immigration and Customs Enforcement agents, allegedly in
violation of the Fourth and Fifth Amendments). In short, courts’ authority now to create
new causes of action for money damages under the Constitution is most limited, for “if
there are sound reasons to think Congress might doubt the efficacy or necessity of a
damages remedy as part of the system for enforcing the law and correcting a wrong, the
courts must refrain from creating the remedy in order to respect the role of Congress in
determining the nature and extent of federal-court jurisdiction under Article III.” Ziglar,
137 S. Ct. at 1858. And even “uncertainty alone” in this regard “forecloses relief.” Egbert,
142 S. Ct. at 1804.
We now address whether Tate’s claim arises in a “new context” and, if so, whether
special factors counsel hesitation about extending the Bivens remedy to that context.
B
On the first step, Tate argues that his Eighth Amendment conditions-of-confinement
claim for money damages against prison officials is authorized by the Supreme Court’s
10 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 11 of 17
decisions in Carlson v. Green, 446 U.S. 14 (1980), and Farmer v. Brennan, 511 U.S. 825
(1994), and that the district court erred as a matter of law in concluding otherwise.
The district court concluded that while Carlson “involved a prison official’s
deliberate indifference to an inmate’s health in failing to provide medical care, where that
failure allegedly resulted in the inmate’s death[,] . . . Tate’s claim is premised on conditions
in the [Special Housing Unit]. . . . His conditions-of-confinement claim thus arises in a
new context.” And with respect to Farmer, the district court held that the Supreme Court
did not address whether it was recognizing a Bivens claim, as the issue was neither raised
in that case nor addressed by the Court.
While it is not disputed that the standard for finding “a new context is broad,”
Hernandez, 140 S. Ct. at 743, the dispute here centers on how broad or, conversely, how
narrow a court must understand the precedential scope of the Bivens cases to be. We
conclude that the “new context” standard is sufficiently broad that Tate’s conditions-of-
confinement claim does indeed arise in a “new context.”
The Supreme Court has instructed not only that “new context” must be understood
broadly but also that a new context may arise if even one distinguishing fact has the
potential to implicate separation-of-powers considerations. See Egbert, 142 S. Ct. at 1805.
While not providing an exhaustive list of distinguishing factors, the Court has noted
examples that would support finding a new context, such as (1) “uncertainty alone” as to
whether allowing a Bivens claim would have systemwide consequences, Egbert, 142 S. Ct.
at 1804; (2) a “new category of defendants,” Malesko, 534 U.S. at 68; (3) a difference as
small as the “rank of the officers involved,” Ziglar, 137 S. Ct. at 1860; (4) the “statutory
11 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 12 of 17
or other legal mandate under which the officer was operating,” id.; (5) a “potential effect
on foreign relations,” Hernandez, 140 S. Ct. at 744, and “national security,” id. at 746–47;
(6) Congress’s “repeatedly declin[ing] to authorize the award of damages” in the relevant
context, id. at 747; and (7) the risk that “the burden and demand of litigation” would prevent
Executive Officials “from devoting the time and effort required for the proper discharge of
their duties,” Ziglar, 137 S. Ct. at 1860.
Thus, for example, in Tun-Cos, we considered a Fourth Amendment claim for an
unreasonable search and seizure brought by several plaintiffs against U.S. Immigration and
Customs Enforcement agents, who were investigating the legality of the plaintiffs’
presence in the United States. 922 F.3d at 514. Although the plaintiffs’ claim was a
straightforward Fourth Amendment claim of the sort allowed in Bivens itself, we
nonetheless concluded that the case arose in a “new context.” We reasoned that the
statutory authority under which the agents in Tun-Cos operated was different than the
statutory authority under which the agents in Bivens operated, and the public policies
regarding the enforcement of immigration laws were different as well. We thus held that
the interests and concerns specific to the immigration context were sufficient to distinguish
Tun-Cos such that it arose in a new Bivens context. See Tun-Cos, 922 F.3d at 523–24.
In this case, Tate has brought a broad-based, systemic claim against an array of
federal officials, including a Regional Director of the Bureau of Prisons, the Warden of
U.S. Penitentiary Lee, and 10 correctional officers. As the district court summarized, Tate
claimed that “the cells were unsanitary, cold, and contained uncomfortable mattresses, and
that he was denied recreation time and given inadequate amounts of toilet paper and
12 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 13 of 17
toothpaste.” And he alleged many more similar deficiencies in his conditions of
confinement. But while he demanded millions of dollars in damages, he has alleged neither
serious physical injury nor any particularized damage from the conditions he challenges.
By its very nature, Tate’s claim would expand prison officials’ liability from previous
Bivens actions to systemic levels, potentially affecting not only the scope of their
responsibilities and duties but also their administrative and economic decisions. In light
of such costs, as the Egbert Court observed, “Congress is in a better position to decide
whether or not the public interest would be served by imposing a damages action” against
such officials. Egbert, 142 U.S. at 1807 (cleaned up).
While the claim authorized in Carlson was, to be sure, also an Eighth Amendment
claim, it nonetheless arose in a context different from Tate’s. The claim in Carlson was
narrow and discrete, implicating well-established criteria for liability and damages. In
Carlson, the inmate’s estate claimed that prison officials had failed to treat the inmate’s
asthma condition, allegedly leading to the inmate’s death. Specifically, the estate alleged
that prison officials kept the inmate in the prison facility “against the advice of doctors,
failed to give him competent medical attention for some eight hours after he had an
asthmatic attack, administered contra-indicated drugs which made his attack more severe,
attempted to use a respirator known to be inoperative,” and unduly delayed his transfer to
a hospital. Carlson, 446 U.S. at 16 n.1. Such a claim is, we conclude, materially distinct
from a systemic claim based on a collection of prison conditions that could vary from cell
to cell, from prison to prison, and from time to time, implicating a broad class of inmates
suffering ill-defined injuries with ill-defined damages. Given this meaningful difference,
13 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 14 of 17
we conclude that Tate’s conditions-of-confinement claim is not authorized by Carlson but
instead arises in a “new context.”
Nor does Tate’s reliance on Farmer advance his cause. In Farmer, the Eighth
Amendment claim involved the failure of prison officials to protect an inmate from an
attack that involved a beating and rape, even though the officials knew that the prison had
a “violent environment” and that the inmate was “particularly vulnerable to sexual attack.”
511 U.S. at 831. Importantly, however, while the Court allowed the action to proceed, it
never addressed whether the claim was properly a Bivens claim. Moreover, the Court has
never considered Farmer a Bivens case when cataloging all of its Bivens cases. See Egbert,
142 S. Ct. at 1799–1800, 1802; Hernandez, 140 S. Ct. at 741, 743; Ziglar, 137 S. Ct. at
1854–55, 1857.
C
Tate contends that even if his claim arises in a “new context,” there are, nonetheless,
“no special factors counseling against what would be an extremely modest extension of
Bivens” and that the district court erred in refusing to extend Bivens. He focuses
particularly on facts about the adequacy vel non of existing procedures available to address
his claim, arguing that there are no satisfactory alternative remedies to redress the wrongs
he alleged. While Tate contends that the district court erred in concluding to the contrary
— that procedures were available to him to address his claims — the difference between
Tate’s position and that of the district court is probably beside the point. The Supreme
14 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 15 of 17
Court has concluded that the absence of a remedy for a wrong is ordinarily for Congress to
fix, not the courts. As it recently explained:
[T]he relevant question is not whether a Bivens action would disrupt a remedial scheme . . . or whether the court should provide for a wrong that would otherwise go unredressed. Nor does it matter that existing remedies do not provide complete relief. Rather, the court must ask only whether it, rather than the political branches, is better equipped to decide whether existing remedies should be augmented by the creation of a new judicial remedy.
Egbert, 142 S. Ct. at 1804 (emphasis added) (cleaned up). Thus, while the Court did not
categorically reject the possibility that Bivens may still be extended, it nonetheless
emphasized that before authorizing any extension, a court must devote special attention to
separation-of-powers considerations.
As already noted, the Supreme Court has described a two-step process for analyzing
purported Bivens claims, prescribing factors for consideration at each step. But in Egbert,
the Court’s most recent Bivens case, the Court recognized a substantial overlap between
the factors relevant to whether a purported Bivens claim arose out of a “new context” and
the special factors that counsel hesitation for any extension, often leading to an analysis
that addresses just a single question. As the Court observed:
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.
142 S. Ct. at 1803. Justice Gorsuch, concurring in the judgment, noted similarly that the
Court’s opinion “recognizes that our two-step inquiry really boils down to a single
question: Is there any reason to think Congress might be better equipped than a court to
weigh the costs and benefits of allowing a damages action to proceed?” Id. at 1809
15 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 16 of 17
(Gorsuch, J., concurring in the judgment) (cleaned up). And when answering that question,
the Court stated that courts must show “utmost deference” to Congress so as not to
“arrogate legislative power.” Id. at 1803 (majority opinion) (cleaned up). Thus, while
courts can attempt to describe the aspect of a cause of action that makes it more suitable
for Congress to create, “a court likely cannot predict the systemwide consequences of
recognizing a cause of action under Bivens. . . . [And] [t]hat uncertainty alone is a special
factor that forecloses relief.” Id. at 1803–04 (cleaned up).
In explaining above why Tate’s claim arises in a “new context,” we noted that his
claim seeks to impose liability on prison officials on a systemic level, implicating the day-
to-day operations of prisons, affecting the scope of the officials’ responsibilities and duties,
and implicating policy, administrative, and economic decisions. Determinations about the
temperature at which to keep cells, the level of cleanliness at which prison employees or
inmates themselves are to maintain cells, the adequacy of toilet paper and toothbrushes,
and the length and thickness of mattresses are usually the subject of systemwide executive
regulations. Moreover, providing a damages remedy for such inadequacies would involve
not only decisions of acceptable human needs but also judgments regarding prison staffing
levels, economic considerations, and the most efficient procedures for addressing the
inadequacies. As the Egbert Court noted:
The Bivens inquiry does not invite federal courts to independently assess the costs and benefits of implying a cause of action. A court faces only one question: whether 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.
16 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 17 of 17
Egbert, 142 S. Ct. at 1805 (cleaned up). We conclude that in this context, the political
branches are indeed “better equipped to decide whether existing remedies should be
augmented by the creation of a new judicial remedy.” Id. at 1804 (cleaned up). This is
especially so because we are ill-suited to “predict the systemwide consequences of
recognizing a cause of action under Bivens,” and even our “uncertainty” on that question
“forecloses relief.” Id. at 1803, 1804 (cleaned up).
In short, the “special factors” counseling hesitation here in providing a new cause
of action are similar in kind to the factors distinguishing Tate’s claim from the claim in
Carlson. Heeding the Supreme Court’s warning that courts should not be in the business
of creating causes of action and that they must give the legislative branch “utmost
deference” in considering whether to do so, our uncertainty is itself sufficient to resolve
Tate’s claims. The judgment of the district court is accordingly
AFFIRMED.