by Tina LaRitz*
Plaintiffs who suffer constitutional violations at the hands of federal officers typically claim damages remedies through federal statutes. But when statutory protection is unavailable or inapplicable, the judicially-created Bivens doctrine can offer certain plaintiffs a path to redress. A “Bivens claim” asks a federal court to provide a damages remedy to persons suffering injury from a constitutional violation by a federal officer when there is no statutory recognition of such a right.1 In addition to enabling plaintiffs’ vindication of their constitutional rights, Bivens is intended to dissuade federal officers from committing constitutional violations in the first place.2 Yet the Supreme Court has only recognized a Bivens damages remedy in three narrow circumstances: unlawful searches and seizures under the Fourth Amendment,3 cruel and unusual punishment under the Eighth Amendment,4 and gender discrimination under the Fifth Amendment.5 This Contribution argues that the Bivens doctrine must be preserved as a remedy pursuable through the federal courts for aggrieved plaintiffs.
The Supreme Court established the Bivens doctrine in 1971, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. The plaintiff, Bivens, claimed damages when federal agents violated his Fourth Amendment rights through an unreasonable search.6 In sustaining Bivens’ claim, the Court established a damages remedy, creating a federal cause of action to remedy harms from unconstitutional Fourth Amendment searches committed by federal officers.7 However, since Bivens, the Court has increasingly emphasized the separations of powers concerns that Bivens actions can evoke, given that providing damages remedies typically falls within the scope of the legislature.8
More than fifty years later, in June 2022, the Supreme Court issued a decision9 that many legal commentors called the “end” of Bivens.10 In Egbert v. Boule, a 6–3 majority held that the Court lacked the authority under Bivens to extend a cause of action to a plaintiff who suffered unreasonable use of force by a federal officer in violation of the Fourth Amendment.11 While the Court denied certiorari on the question of overruling Bivens altogether, Justice Thomas stated in his majority opinion that “in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts.”12 Justice Gorsuch went a step further in his concurrence, arguing that the Court should reject all invitations to create causes of action and return the power exclusively to Congress.13 The narrow scope created by this decision renders Bivens an increasingly flimsy shield against government overreach.
Nonetheless, Boule preserves a narrow path for plaintiffs to continue to bring Bivens claims in the “traditional” Bivens context: unreasonable searches that violate the Fourth Amendment. Yet the contours of this area are not entirely clear: since Bivens involved a physical search, would an electronic search be awarded the same treatment? Although the Supreme Court has not considered this question, two circuit courts have. The Seventh Circuit allowed a Bivens claim to proceed in a case involving an electronic search through covert surveillance equipment.14 On the other hand, the Fourth Circuit has held that electronic surveillance presents “wildly different facts” than those in Bivens and denied a Bivens action.15
Electronic searches should fall within the recognized Bivens context because the underlying policy rationale remains the same — remedying harm suffered by individuals at the hands of federal officers and encouraging law enforcement compliance with constitutional duties. The proliferation of electronic methods of investigation today affirms the importance of Bivens as “instruction and guidance” for federal law enforcement officers conducting searches16 — and the necessity of a remedy when these limits are breached.
Since the Bivens decision, federal courts have considered the applicability of the doctrine to a variety of constitutional violations, defendants, and factual scenarios. The Court extended the doctrine to two new circumstances in the decade following Bivens. First, it deemed a Bivens action appropriate for a Fifth Amendment claim of gender discrimination against a Congressman for firing his female secretary.17 It then extended the doctrine to an Eighth Amendment cruel and unusual punishment claim against prison officials for failing to treat an inmate’s asthma.18 These decisions affirmed not only that Bivens was applicable to other constitutional rights, but also that the primary responsibility for enforcing those rights rested with the courts.19
Today, courts analyze Bivens claims under the framework laid out in Ziglar v. Abbasi. In Ziglar, undocumented noncitizens who were detained following the terrorist attacks of September 11th sought damages for various constitutional violations related to their conditions of confinement.20 The Supreme Court decided, first, that the case bore little resemblance to the Court’s three prior Bivens actions (Bivens, Davis, and Carlson); in other words, it presented a “new context.”21 It then put forth numerous factors to assess when determining whether a context is factually and legally similar to a recognized Bivens context, including:
[T]he 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.22
In other words, the analyzing court should aim to uncover whether it is more proper for the courts or Congress to provide a remedy. Ultimately, the Ziglar decision made clear to lower courts that extending Bivens is now a “disfavored” judicial activity.23
The Court in Ziglar further considered whether there were “special factors” that counseled hesitation against extending the Bivens doctrine.24 After finding that various factors suggested creating a cause of action was best left to the legislature, the Court declined to extend Bivens.25 Three years later, the Court applied Ziglar’s framework in Hernandez v. Mesa.26 In that case, the plaintiff alleged that a U.S. Border Patrol agent violated the Fourth and Fifth Amendment rights of a 15-year-old Mexican national, whom the agent shot in a cross-border incident.27 The Court again denied a Bivens remedy, finding that Bivens’ holding did not extend to claims based on cross-border shootings.28 Moreover, it stated that extending Bivens to this new context would intrude upon the Executive Branch’s ability to enforce the law29 and the Legislative Branch’s prerogative to grant a remedy through statutory law.30 This rationale exemplifies the limiting nature of the Ziglar framework: unless a case arises with the same factual and legal circumstances as those in the three established Bivens contexts, the Supreme Court is very unlikely to step in, and will justify its deference through citing separation of powers.
Still, there is a long history of applying Bivens to various types of Fourth Amendment searches outside the factual setting of Bivens itself.31 Indeed, although Bivens claims have been categorically denied for other constitutional violations, the Supreme Court has upheld their viability in the Fourth Amendment context.32 Even forty years ago, the Ninth Circuit found that claims of warrantless wiretapping “fall[s] directly within the coverage of Bivens.”33 This approach resonates soundly with the purposes of Bivens. The fact that a search was achieved through an electronic rather than physical invasion need not change the nature of the harm to the plaintiff that Bivens seeks to remedy. Furthermore, the opaque nature of electronic searches bolsters the argument that an ex ante deterrent, like Bivens, is necessary to increase federal officers’ compliance with constitutional standards and ensure the Executive Branch is not wholly unchecked in its administration of the law. And, lastly, Congress has not legislated extensively on electronic searches of investigative targets34 — perhaps understandably, as the rapid evolution of electronic search methods may make this area less suitable for legislative intervention. Consequently, the judiciary is the appropriate branch to remedy these violations and apply Bivens to the specific cases Congress has not yet protected — and if Congress disagrees, they are free to legislate otherwise.
Although the Boule decision undeniably adds another limitation on the already-diminished Bivens doctrine, it may not be as seismic as those seeking to retain Bivens fear. Precedent demonstrates that Bivens claims are well-established within the Fourth Amendment unreasonable search context. Circuit courts are certainly within their authority to allow plaintiffs to rely on Bivens in similar contexts when the search at issue happens to be electronic. We live in a ubiquitously digital age, and federal law enforcement officers have adapted by incorporating new and evolving technology into their operations. While this has, unsurprisingly, raised questions about how to regulate such changes, the fundamental nature of the Constitution’s protections of liberty, freedom, and justice remain unchanged. Federal courts would be prudent to apply these longstanding principles as they inevitably adapt their jurisprudence to our technology-driven society.
* Tina LaRitz is a J.D. Candidate (2023) at New York University School of Law. This Contribution is a commentary on the problem at the National Cybersecurity Moot Court Competition hosted by UCLA School of Law. The question presented was whether, when a plaintiff plausibly alleges that a federal law enforcement officer violated their Fourth Amendment rights by using a Network Investigative Technique (“NIT”) and there is no alternative legal remedy for such a violation, the federal courts can and should recognize a damages claim under the Bivens doctrine. This Contribution presents an argument for the preservation of the Bivens doctrine, and the views expressed herein do not necessarily reflect the views of the author.
1. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971).
2. See Bivens, 403 U.S. at 410 (“For people in Bivens’ shoes, it is damages or nothing.”) (Harlan, J., concurring in the judgment); Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (“The purpose of Bivens is to deter individual federal officers from committing constitutional violations.”).
3. See Bivens, 403 U.S. at 397 (awarding damages for injuries plaintiff suffered as a result of federal agents’ violation of the 4th Amendment).
4. See Carlson v. Green, 446 U.S. 14, 25 (1980) (holding an inmate could proceed in their Bivens claim concerning a prison official’s failure to treat their asthma, in violation of the Eighth Amendment).
5. See Davis v. Passman, 442 U.S. 228, 249–50 (1979) (holding a Congressman’s firing of a female secretary constituted gender discrimination in violation of the Fifth Amendment’s Due Process Clause and was deserving of a Bivens remedy).
6. Bivens, 403 U.S. at 390–91.
7. Id.; see also Malesko, 534 U.S. at (explaining that the Court’s authority to imply a new constitutional tort derives from its jurisdiction to decide cases “arising under the Constitution, laws, or treaties of the United States” (quoting 28 U.S.C. § 1331)).
8. See, e.g., Green, 446 U.S. at 29 (“[T]he Court’s willingness to infer federal causes of action that cannot be found in the Constitution or in a statute denigrates the doctrine of separation of powers and hardly comports with a rational system of justice.”) (Powell, J., concurring in the judgment); Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (“When a party seeks to assert an implied cause of action under the Constitution itself . . . separation-of-powers principles are or should be central to the analysis.”).
9. Egbert v. Boule, 142 S. Ct. 1793 (2022).
10. See, e.g., Dan McCue, Cert Petition Decisions on Tuesday Could Spell the True End of Bivens Precedent, The Well News (June 17, 2022), https://www.thewellnews.com/supreme-court/cert-petition-decisions-on-tuesday-could-spell-the-true-end-of-bivens-precedent/; Howard M. Wasserman, Court constricts, even if it does not quite eliminate, damages actions under Bivens, SCOTUSblog (June 8, 2022, 9:42 PM), https://www.scotusblog.com/2022/06/court-constricts-even-if-it-does-not-quite-eliminate-damages-actions-under-bivens/.
11. Boule, 142 S. Ct. at 1800.
13. Id. at 1810.
14. Gustafson v. Adkins, 803 F.3d 883, 886 (7th Cir. 2015) (allowing a Bivens claim to proceed when a government official’s installation of covert video surveillance equipment was alleged to be an unconstitutional search).
15. Attkisson v. Holder, 925 F.3d 606, 621, 628 (4th Cir. 2019).
16. Ziglar, 137 S. Ct. at 1857.
17. See Davis, 442 U.S. at 249–50.
18. See Green, 446 U.S. at 25.
19. 3 Civil Rights Actions P 14.01 (2021).
20. Ziglar, 137 S. Ct. at 1852–53.
21. Id. at 1859–60.
22. Id. at 1860.
23. Id. at 1857.
25. Id. at 1860.
26. 140 S. Ct. 735 (2020).
27. Id. at 740.
28. Id. at 749–50.
29. Id. at 744.
30. Id. at 749.
31. See, e.g., Gibson v. United States, 781 F.2d 1334, 1341 (9th Cir. 1986) (reviving a dismissed Bivens claim under the Fourth Amendment for continual unauthorized interception of the plaintiff’s phone calls); Jacobs v. Alam, 915 F.3d 1028, 1038–39 (6th Cir. 2019) (providing a Bivens remedy for Fourth Amendment unreasonable search when federal agents shot the plaintiff and ransacked his home); Ioane v. Hodges, 939 F.3d 945, 952 (9th Cir. 2018) (extending a Bivens remedy to Fourth Amendment violation of right to bodily privacy for IRS agent’s monitoring of plaintiff in the bathroom during execution of search warrant).
32. Compare Minneci v. Pollard, 565 U.S. 118, 120–21 (2012) (denying a Bivens remedy for an Eighth Amendment claim), with Ziglar, 137 U.S. at 1856 (“[I]t must be understood that this opinion is 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.”).
33. Fazaga v. Fed. Bureau of Investigation, 965 F.3d 1015, 1055 (9th Cir. 2020) (quoting Gibson v. United States, 781 F.2d 1334, 1341 (9th Cir. 1986)).
34. Congress has, however, passed legislation to address similar online abuses: Consumer Fraud and Abuse Act of 1986, Pub. L. No. 99–474, 100 Stat. 1213 (codified as amended at 18 U.S.C. § 1030), for example, relates to hacking by private parties, and the Electronic Communications Privacy Act (“ECPA”), Pub. L. 99–508, 100 Stat. 1848 (1986), covers the interception of wire communications and access of stored electronic communications without authorization.