Anas Elhady v. Unidentified CBP Agents, 18 F.4th 880

Plaintiff Anas Elhady (U.S. citizen) was stopped returning from Canada, detained by border-patrol agents, and left in a holding cell without jacket, shoes, or blanket for about four hours while exposed to near-freezing conditions.
Elhady complained of being cold and sought medical attention; EMT/hospital notes showed delayed capillary refill and a slightly low temperature but no serious injury; physician released him after warming/rest.
Elhady sued federal officers under the Fifth Amendment seeking money damages via an implied Bivens remedy; district court denied dismissal and later granted summary judgment for all defendants except Officer Bradley, finding a due-process violation and no qualified immunity for Bradley.
On appeal Bradley challenged qualified immunity; the panel asked for supplemental briefing on whether Bivens applies (an issue the Government had not pressed on appeal).
The Sixth Circuit majority held that Bivens does not extend to claims against border-patrol agents in the border context (per Hernandez v. Mesa and related precedent) and reversed, directing entry of final judgment for Bradley.
Judge Rogers dissented, arguing the Government forfeited the Bivens argument on appeal and that, on the merits, the district court correctly denied qualified immunity to Bradley.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Is a Bivens remedy available for Elhady’s Fifth Amendment due‑process claim against border‑patrol officers?	Bivens should extend here to permit damages for unconstitutional detention conditions.	Bivens should not be extended to border contexts; special factors counsel against an implied remedy.	No — Bivens does not extend to this border context; reversed.
2. May the court address Bivens on interlocutory qualified‑immunity appeal despite appellant not pressing it?	Elhady: appellate review improper / appellant forfeited.	Court: Bivens is an antecedent question implicating qualified immunity and may be reached.	Yes — court may and should decide Bivens first on interlocutory appeal.
3. Does the case present a "new Bivens context"?	Elhady/district court: context either not meaningfully new or extension appropriate.	Border operations are a markedly new context under Supreme Court guidance.	New context — border cases are markedly different and trigger the two‑part test.
4. Do special factors (e.g., national security, separation of powers) counsel against extending Bivens?	Plaintiff: this detention posed no national‑security concerns; no special factors bar remedy.	Defendant: national security and foreign‑policy implications make expansion of Bivens inappropriate.	Yes — special factors, especially national‑security/separation‑of‑powers concerns, preclude extension at the border.

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recognized implied damages remedy for Fourth Amendment violation)
Davis v. Passman, 442 U.S. 228 (1979) (recognized Bivens‑style remedy for Fifth Amendment employment claim)
Carlson v. Green, 446 U.S. 14 (1980) (recognized Bivens remedy for Eighth Amendment inadequate‑medical‑care claim)
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (articulated two‑step framework and cautioned against expanding Bivens)
Hernandez v. Mesa, 140 S. Ct. 735 (2020) (held border‑related claims present a new context and national‑security special factors counsel against Bivens extension)
Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (refused to extend Bivens beyond its limited instances)
Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931 (2021) (courts should leave to Congress any reasonable alternative or single sound reason to defer creating a cause of action)
Wilkie v. Robbins, 551 U.S. 537 (2007) (discussed appellate jurisdiction over antecedent questions implicated by qualified immunity)
Tun‑Cos v. Perrotte, 922 F.3d 514 (4th Cir. 2019) (refused to extend Bivens in an immigration/border context)