The federal appeals court based in Denver rejected the appeal of prison officials accused of using excessive force against a prisoner, reasoning earlier this month that even if the U.S. Supreme Court’s precedent means the claims will ultimately fail, an immediate appeal was not the answer.
The appeal from the Federal Bureau of Prisons defendants implicated two intersecting legal concepts: the ability to sue federal employees for money when they violate constitutional rights, known as a “Bivens remedy,” and the ability to immediately appeal certain trial court decisions before the case has ended.
By 2-1, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit concluded that as much as the Supreme Court has restricted Bivens remedies to plaintiffs, it has been even clearer that immediate appeals are available in only limited circumstances.
Even if the prison officials were right that a trial judge should have thrown out the claims against them, “that is not a valid reason” to appeal, wrote Judge Scott M. Matheson Jr. in the May 7 opinion.
Judge Timothy M. Tymkovich dissented, arguing that if the choice was whether to honor the Supreme Court’s directive and shut down Bivens claims or to decline to hear immediate appeals, he would rather dispose of the Bivens claims.
A claim’s “zombie existence harms the public writ large,” he wrote, as “potential claimants are left with a brain-dead cause of action sustained by life support.”
A remedy and a reaction
Bivens remedies stem from a 1971 Supreme Court decision, Bivens v. Six Unknown Named Agents. In that case, federal narcotics officers entered a man’s home without a warrant, arrested and strip searched him.
A majority of the court decided plaintiff Webster Bivens could sue for a violation of the Fourth Amendment, which prohibits unreasonable searches and seizures. Since then, the Supreme Court has recognized a Bivens remedy exists for other, limited scenarios.
However, in 2022, the court handed down a 6-3 decision in Egbert v. Boule, effectively throttling all future constitutional claims against individual federal employees. The majority concluded Bivens remedies are not available when Congress or the executive branch is “better equipped” to create a method for addressing constitutional violations.
Quickly, the 10th Circuit applied the new constraint to shut down the claims of federal prisoners. Some federal trial judges in Colorado have openly protested the limitation on Bivens remedies, with Senior Judges William J. Martínez and Christine M. Arguello explicitly asking Congress to give federal prisoners the same right to sue over constitutional violations as state prisoners.
With the new status quo, “a federal prison official may sadistically beat an inmate to within an inch of his life and that inmate will not have a civil remedy against that prison official,” added U.S. Magistrate Judge Scott T. Varholak, who stopped short of joining the call for congressional action.
The Byron White U.S. Courthouse in downtown Denver, which houses the 10th U.S. Circuit Court of Appeals.
In the case before the 10th Circuit, Khalfan Khamis Mohamed, convicted for the 1998 bombings of U.S. embassies abroad, is incarcerated at the U.S. Penitentiary — Administrative Maximum Facility in Florence. There, he alleged prison officials punched and kicked him in retaliation for a hunger strike, calling him a terrorist and breaking his ankle.
In early 2022, then-U.S. Magistrate Judge Nina Y. Wang recommended against dismissing Mohamed’s Bivens claims for excessive force and failure to intervene. Because the Supreme Court previously recognized a Bivens remedy under the Eighth Amendment, which prohibits cruel and unusual punishment, she believed the excessive force claims fell into the same category.
U.S. District Court Senior Judge R. Brooke Jackson agreed with her and declined to dismiss the Bivens claims.
Weeks later, the Supreme Court handed down its decision in Egbert. The defendants asked Jackson to reconsider, noting the 10th Circuit had also recently used Egbert to dismiss an excessive force case. But Jackson refused to budge, insisting the Supreme Court had not killed off what limited Bivens remedies it already recognized — including, he believed, Mohamed’s excessive force claims.
Echoing other judges’ criticisms of the narrowed pathway for Bivens remedies, Jackson wrote the defendants “fail to recognize that retracting constitutional protections merely because the violator is a federal official represents an abdication of the judicial role.”
Is Bivens dead?
The government immediately appealed Jackson’s decision to the 10th Circuit. But the appellate panel was skeptical it could even hear the case, based on the Supreme Court’s other restrictions on immediate mid-case appeals. During oral arguments, Matheson quoted a 2006 Supreme Court decision rejecting the idea that appeals “would be a matter of right whenever the Government lost a motion to dismiss.”
Mohamed’s attorneys acknowledged that due to Egbert and the 10th Circuit’s interpretation of it, Mohamed’s excessive force claims would have difficulty succeeding. However, that did not mean the 10th Circuit should step in now.
Judge Timothy M. Tymkovich of the U.S. Court of Appeals for the 10th Circuit.
The panel’s majority, consisting of Barack Obama appointees Matheson and Judge Robert E. Bacharach, sided with Mohamed, noting other circuit courts had not recognized immediate appeals in Bivens cases. Matheson wrote that there were other avenues the prison defendants could use to defeat the excessive force claims, even after the case ends in the trial court.
Casting doubt on whether the Supreme Court had actually killed off Bivens remedies altogether, including for Mohamed, Matheson wrote simply: “We prefer an express holding from a Supreme Court majority.”
Tymkovich, a George W. Bush appointee, retorted that he believed Bivens remedies were tossed in “the dustbin.”
“The lesson I take away is that the ‘right answer’ to whether to recognize a Bivens cause of action ‘will always be no,'” he wrote. “The consequence is that neither Mr. Mohamed, nor any other claimant, has viable Bivens claims.”
Based on that conclusion, Tymkovich would have decided the appeal, found Mohamed’s excessive force allegations not viable and ordered the dismissal of those claims.
The case is Mohamed v. Jones et al.
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