by David M. Reutter
In an opinion issued on December 2, 2022, the U.S. Court of Appeals for the Fourth Circuit affirmed a district court’s dismissal of a federal prisoner’s claim for money damages based on “degenerate” conditions of confinement. The Court found the cause of action was a new context of Bivens v. Six Unknown Federal Narcotics Agents, 488 U.S. 388 (1971) that “should be provided by Congress, if at all.”

Prisoner Raymond Tate, who was imprisoned at U.S. Penitentiary-Lee in Virginia, commenced his pro se action against officials and employees of the federal Bureau of Prisons (BOP). “His highly detailed 25-page complaint plus 29 exhibits” alleged violations of his First, Fifth, and Eight Amendment rights, the Court later recalled. Specifically, he “alleged that the conditions in the Special Housing Unit in which he was held were so degrading and detrimental that they constituted cruel and unusual punishment.”

Defendants filed a motion to dismiss, arguing his claims were not cognizable under Bivens. The district court agreed and declined “to recognize a new remedy in any of the new contexts in which Tate’s claims [arose].” Tate subsequently appealed, and the Fourth Circuit appointed him pro bono counsel, Daniel Scott Harawa. Daniel Scott Harawa from Washington University School Of Law in Saint Louis.

“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,” the Court said. “But no statutory counterpart existed for plaintiffs to sue federal officials for money damages for violating their constitutional rights.”

In Bivens, the U.S. Supreme Court (SCOTUS) found an implied cause of action under the Fourth Amendment that entitled a plaintiff “to sue federal officials for money damages arising from an unreasonable search and seizure,” the Court continued. “Though the Fourth Amendment provided no such remedy explicitly, [SCOTUS] found that a remedy was implied under general principles of federal jurisdiction to redress wrongs that otherwise would have been left unredressed.”

SCOTUS subsequently found two implied causes of action for money damages in claims alleging Fifth and Eighth Amendment violations, in its rulings in Davis v. Passman, 442 U.S. 228 (1979) and Carlson v. Greene, 446 U.S. 14 (1980).

In the 42 years since the latter decision, SCOTUS “consistently rebuffed” a dozen requests “to find implied causes of action against federal officials,” the Court noted. In the last five years, SCOTUS has also “issued a trilogy of opinions not only expressing regret over its Bivens cases but also demonstrating hostility to any expansion of them.”

To limit its expansion, SCOTUS prescribed a “two-step inquiry” in Hernandez v. Mesa, 140 S. Ct. at 735 (2020), the Court said. “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.”

Following this outline, the Fourth Circuit found Tate’s claim involves a “broad-based systemic claim against an array of federal officials, . . . potentially affecting not only the scope of their responsibilities and duties but also their administrative and economic decisions.” Thus, Tate’s claim arises in a “new context” from Bivens and its progeny.

The second step, the Court continued, 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?”

In answer, the Fourth Circuit said it was ill-suited to predict the systemwide consequences of Tate’s claim. Thus, the new context of his claim and the special factors of considerations that it entails foreclosed relief for him. The district court’s order was thus affirmed.  See: Tate v. Harmon, 54 F.4th 839 (4th Cir. 2022).

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