Fact Check: The Bivens remedy is nearly dead.

Fact Check: "The Bivens remedy is nearly dead."

What We Know

The Bivens remedy, established by the Supreme Court in 1971, allows individuals to sue federal officials for damages when their constitutional rights are violated while acting under federal authority. The original case, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, recognized a cause of action for unreasonable search and seizure under the Fourth Amendment. However, the scope of Bivens actions has been significantly narrowed in recent years. The Supreme Court has repeatedly emphasized that recognizing new Bivens claims is a "disfavored judicial activity" (Egbert v. Boule, 596 U.S. 482, 2022).

Recent rulings have indicated that courts are increasingly reluctant to extend Bivens protections to new contexts. For instance, in Pettibone v. Russell, the Ninth Circuit found that a claimed violation of the Fourth Amendment presented a new context that did not warrant a Bivens remedy (Pettibone v. Russell, 59 F.4th 449, 2023). Similarly, the Ninth Circuit ruled against Bivens claims in Mejia v. Miller and Harper v. Nedd, emphasizing that extending Bivens would intrude upon the functions of other branches of government (Mejia v. Miller, 61 F.4th 663, 2023; Harper v. Nedd, 71 F.4th 1181, 2023).

Moreover, legislative efforts are underway to address the perceived decline of the Bivens remedy. The proposed Bivens Act of 2024 aims to provide a civil remedy for individuals whose rights have been violated by federal officials (Bivens Act of 2024). This indicates a recognition of the challenges faced by plaintiffs in seeking redress through Bivens claims.

Analysis

The claim that "the Bivens remedy is nearly dead" is supported by recent judicial trends that show a significant reduction in the willingness of courts to recognize new Bivens claims. The Supreme Court's decision in Egbert v. Boule underscores this trend, as it established a two-step process for determining the viability of Bivens claims, emphasizing the need for claims to fit within established contexts (Egbert v. Boule). The Court's reluctance to expand Bivens is further illustrated by its refusal to allow claims in cases like Hernández v. Mesa, where the context was deemed new and lacking adequate remedies (Hernández v. Mesa).

However, it is important to note that the Bivens remedy has not been entirely eliminated. The Ninth Circuit has still recognized Bivens claims in certain contexts, such as in cases involving deliberate indifference to medical needs of prisoners (Watanabe v. Derr, 115 F.4th 1034, 2024). This suggests that while the Bivens remedy faces significant challenges, it is not completely defunct.

The proposed Bivens Act of 2024 reflects ongoing legislative efforts to restore and clarify the Bivens remedy, indicating that there is still political support for its existence (Bivens Act of 2024). This legislative activity suggests that while the judicial landscape for Bivens claims is indeed restrictive, there is an acknowledgment of the need for such remedies in cases of federal overreach.

Conclusion

The verdict is Partially True. The claim that "the Bivens remedy is nearly dead" holds some validity, as recent judicial decisions have significantly limited the scope of Bivens actions, making it increasingly difficult for plaintiffs to succeed in such claims. However, the remedy has not been entirely extinguished, as courts have still recognized Bivens claims in specific contexts, and legislative efforts are underway to reinforce the remedy. Thus, while the Bivens remedy is under severe strain, it is not completely dead.

Fact Check: The Bivens remedy is nearly dead.