The Fourth Circuit held that failing to raise the existence of a Bivens action in the district court forfeits the issue for a qualified-immunity appeal.
July 15, 2020
In Hicks v. Ferreya, the Fourth Circuit refused to address the Bivens question in an interlocutory qualified-immunity appeal. The Bivens question—which asks whether an implied constitutional cause of action exists for a federal official’s alleged violation of the plaintiff’s rights—is normally appealable alongside the denial of qualified immunity. But the defendants in Hicks failed to raise the issue in the district court. So in their interlocutory qualified-immunity appeal, the Fourth Circuit concluded that the issue had been forfeited. In the course of doing so, the Fourth Circuit rejected the argument that the Bivens issue (like jurisdictional issues) could not be waived or forfeited. The court also dismissed the defendants’ fact-based challenges to the denial of qualified immunity.
The Hicks Litigation
Hicks involved a Secret Service officer’s claim against two United States Park Police officers. The plaintiff was parked on the side of an interstate, waiting to lead a motorcade, when a Park Police officer pulled up behind him. Despite the plaintiff’s being in a government-issued vehicle—which had a police antenna, strobing bar, and emergency lights—and providing his credentials, the Park Police detained him for 40–60 minutes. (He accordingly missed the motorcade.) After the Park Police finally released the plaintiff, one of the Park Police officers almost immediately pulled him over again, this time because the plaintiff was talking on his cell phone while driving. The plaintiff later brought Bivens claims against the two Parks Police officers involved in these stops, alleging that their conduct violated the Fourth Amendment.
The district court denied the Park Police officers’ request for qualified immunity. Viewing the record in the light most favorable to the plaintiff, the district court determined that the Park Police officers “had assuaged any concerns about [the plaintiff] and knew that he was an on-duty Secret Service agent” 15–35 minutes before releasing him after the first stop. The district court also determined that a reasonable jury could conclude that the Park Police officers were not following an unwritten protocol in detaining the plaintiff until a supervisor arrived. As for the second stop, the district court concluded that several genuine fact issues precluded qualified immunity. The parties genuinely disputed, for example, whether the Park Police officer recognized that he was pulling over the plaintiff—a law-enforcement officer, who is allowed to use a cell phone while driving—and whether the plaintiff was driving erratically.
The Park Police officers then appealed arguing (1) that no Bivens action existed for their conduct and (2) the district court erred in denying qualified immunity.
The Bivens Question and Qualified-Immunity Appeals
The Bivens issue requires a little background.
Many civil-rights actions are brought under 18 U.S.C. § 1983 against state officials. But § 1983 does not create a cause of action against federal officials. When federal officials violate a plaintiff’s rights, that plaintiff might be able to sue for damages using an implied constitutional cause of action. The Supreme Court held as much in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. Subsequent cases have held, however, that a Bivens action is not available in all circumstances. Courts accordingly must sometimes ask the “Bivens question”: does an implied constitutional cause of action exist in this context?
The Supreme Court has also held that appellate courts can address the Bivens question as part of a qualified-immunity appeal. The Court said that the existence of a Bivens action was a necessary antecedent to qualified immunity and thus immediately appealable alongside immunity. That’s not quite right, and I (and others) have argued that the Bivens question should not be within the scope of appeal. But, at least for now, it’s the rule.
Forfeiture of the Bivens Question
The Supreme Court has recently emphasized that courts should ask the Bivens question anytime a case arises in a new context. And the court defined a “new context” so broadly and vaguely that nearly every federal defendant will have a non-frivolous argument that a court must address the Bivens question. (For those interested, I’ve written on this site about how this recent emphasis on new contexts makes interlocutory review of the Bivens question even worse, and I have a short essay forthcoming in the University of Chicago Law Review Online expanding on that point.) The defendants in Hicks accordingly asked the Fourth Circuit to address whether a Bivens action existed for their alleged conduct.
There was one problem, however: the defendants never raised this issue in the district court. The Fourth Circuit accordingly held that the defendants had forfeited any argument about the existence of a Bivens action. Issues raised for the first time on appeal are generally considered forfeited. And although the court can excuse the forfeiture, the Fourth Circuit saw no reason to do so in Hicks. One of the recent Supreme Court decisions that emphasized the need to ask the Bivens question came out a year before the defendants sought summary judgment. There was no excuse for their failure to raise the issue in the district court.
The Fourth Circuit also rejected the Park Police officers’ argument that addressing the Bivens question was mandatory. The officers invoked the some of the language that courts have used concerning the Bivens question (e.g., the analysis “must be applied in determining whether a Bivens remedy is available”) to argue that a court of appeals must raise and address the Bivens question, even on its own initiative. But mandatory language like that did not excuse forfeiture:
To say that a court must apply a given analysis when it addresses a question is not to say that the court must address that question sua sponte when nobody has raised it. For instance, as the officers explain elsewhere in their briefs, in deciding whether a seizure is “reasonable” under the Fourth Amendment, courts “must look to” all surrounding facts and circumstances, taken together. But that does not mean that courts must raise the question of whether a seizure was reasonable sua sponte if nobody has argued the point, and it has been established for almost a century that a defendant has no right to raise that question for the first time on appeal.
The Fourth Circuit added that the Bivens argument was weak: “along every dimension the Supreme Court has identified as relevant to the inquiry, this case appears to represent not an extension of Bivens so much as a replay.”
Disputed Facts and Qualified Immunity
Turning to qualified immunity, the Fourth Circuit determined that the officers raised only prohibited fact-based arguments. And that’s improper. In an appeal from the denial of qualified immunity at summary judgment, the court of appeals cannot review the genuineness of any fact disputes—i.e., whether the district court properly concluded that there was enough evidence for a reasonable jury to find certain facts. The court of appeals can address only whether those facts, which the district court assumed to be true for purposes of denying summary judgment, make out a clearly established violation of federal law.
The Park Police officers did not make any arguments within the courts’ limited appellate jurisdiction:
They do not argue that if we take the facts as the district court gave them to us then the district court erred as a legal matter when it found that the alleged conduct violated the Fourth Amendment . . . . Nor do the officers take issue with the second step of the district court’s qualified immunity analysis, arguing that any Fourth Amendment violation they may have committed was not “clearly established” at the time of the incident.
(Cleaned up.) Instead, the officers disputed only whether the district court accurately assessed the summary-judgment record. They argued, for example, that the district court erred in seeing a genuine dispute of fact as to whether the officers were following a Parks Police policy. They also argued that the district court should have credited one Park Police officer’s testimony about the second stop. But these arguments merely disputed what facts a reasonable jury could find based on the pretrial record. And those issues were outside of the Fourth Circuit’s interlocutory appellate jurisdiction.
The Fourth Circuit accordingly dismissed the appeal in part and otherwise affirmed the district court’s decision.
Hicks v. Ferreya, 2020 WL 3969268 (4th Cir. July 14, 2020), available at the Fourth Circuit and Westlaw.