Seventh Circuit: Roy Sargeant v. Aracelie Barfield

 

Plaintiff's 8A claim appropriately preserved when 1A claim was screened out, as the screening operated as an interlocutory order, and the underlying facts of the claim established the 8A claim.

A Bivens remedy for not protecting a prisoner is unavailable, as the only Supreme Court precedent recognizing the claim was sub silento; it's therefore a novel claim, and the existing statutory and administrative scheme suffices to establish that Congress might think itself best placed to resolve the procedures. 

DISSENT:

Sub silento Supreme Court holding suffices, given the facts of the case and lower courts' recognition of it.  Even absent that, it's not a new context, and no special factors counsel against recognition of the judicial remedy.  Bivens grounded in constitutional necessity.

Roy Sargeant v. Aracelie Barfield

Ninth Circuit: Perez v. USA

 

Alleged violation of a jus cogens norm doesn't waive federal soveriegn immunity for purposes of a claim under the Alien Tort Statute under a theory of extra-constitutional wrongdoing.

Equitable tolling not available for second cause of action, which under the law at time of filing would bar recovery under any other cause of action, since this judgment bar would prohibit subsequent recoveries, but did not address claims filed in the same suit, either one of which might have prevailed.

Extension of Bivvens unavailable, as an action against the agency head would be an inappropriate attempt to change government policy, and the claim against the agent who actually shot the Mexican citizen on the border fence has national security implications.

CONCURRENCE IN THE JUDGMENT AND PARTIAL CONCURRENCE

No need to reach sovereign immunity, as the elements of the ATS claim aren't met.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/17-56610.pdf

Fourth Circuit: Vernon Earle v. Shreves

 

Bivvens remedy not available for a prisoner's grievance retaliation claim under the First Amendment.

Vernon Earle v. Shreves

Fifth Circuit: Byrd v. Lamb

 

Bivvens not extended to cover a federal agent's preventing the plaintiff from leaving a parking lot and then using excessive force to effect an unlawful seizure.  

Byrd v. Lamb

Sixth Circuit: Scott Callahan v. Fed. Bureau of Prisons

Given precedent and legislative activity in the area, there is no Bivvens cause of action under the First Amendment for the seizure of an inmate's painting and mailed model photographs; the prison grievance procedures presumably offer sufficient remedy.

Scott Callahan v. Fed. Bureau of Prisons

Fourth Circuit: Nathaniel Hicks v. Gerald Ferreyra

Claim that S1983 action against Park Service police for unlawfully detaining a Secret Service agent constitutes an impermissible extension of Bivvens is waived for not being raised below; District Court was not obliged to independently assure itself of the remedy's availability, and the scope of the Bivvens remedy is not a jurisdictional question.

Appeal citing deposition testimony contrary to the reading of the facts in the decision below is not a matter for interlocutory review.

Nathaniel Hicks v. Gerald Ferreyra 

First Circuit: Soto-Cintron v. US

As the arresting officers' mistake was reasonable, given the message received on the radio, it would not have been actionable in a suit against the government -- as it was not actionable in that context, there is no private wrong to sound in tort.

http://media.ca1.uscourts.gov/pdf.opinions/17-1180P-01A.pdf

DC Circuit: Carlos Loumiet v. USA

FTCA, Bivvens, Statute of Limitations


Constitutionally defective exercises of discretion do not shield the government from suit under the discretionary function exception to the FTCA.

The cumulative effect of continuing violations must be considered when considering when a claim under Bivvens accrues.


Carlos Loumiet v. USA

Eighth Circuit: Stuart Wright v. Sean Franklin

Bivvens - Taser-aided arrest of the wrong guy during a league basketball game.

Footnote in motion saying that an argument isn't made doesn't operate as waiver - de novo review on the question of whether there was a clearly-established right.

Qualified immunity on the taser shock, as it was not yet clearly established in the Circuit that a person thought to be possibly armed and dangerous should not be tasered if they were nonviolent and not attempting to flee.

Basis for the detention subsequently raised need not have been thought about at the time - objective reasonableness controls.

20 minute detention of wrong person after having determined them to be the wrong person is a minimal intrusion on the liberty interest, and does not justify a Bivvens claim.

http://media.ca8.uscourts.gov/opndir/15/12/143606P.pdf