71 F.4th 1003
D.C. Cir.2023Background
- On June 1, 2020, federal law-enforcement officers (at Attorney General Barr’s order) cleared peaceful demonstrators from Lafayette Park outside the White House using chemical irritants, rubber bullets, flash/bang devices, and batons; many demonstrators were injured.
- Minutes after the dispersal, President Trump and senior officials walked through the cleared park to St. John’s Church for a photo opportunity; officials gave conflicting explanations for the clearance (curfew enforcement, perimeter expansion, church protection, or enabling the photo op).
- Plaintiffs (individual protestors and Black Lives Matter D.C.) sued federal officers and former AG Barr, asserting Bivens claims for alleged First, Fourth, and Fifth Amendment violations and seeking damages.
- Defendants moved to dismiss, arguing no Bivens remedy is available in this context; the district court dismissed, finding the claims arise in a new context and special factors (including national security) counsel hesitation.
- The D.C. Circuit affirmed: it held the plaintiffs’ claims present a new Bivens context and that national-security concerns surrounding presidential/White House protection constitute a special factor precluding a Bivens damages remedy.
- The court declined to reach other special-factor arguments (e.g., alternative remedies, congressional involvement); concurring opinions discussed the Westfall Act and the possible survival of state-law tort suits for constitutional injuries.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs’ claims arise in a pre-existing Bivens context or a new context | Dellums and analogous pre-1988 precedents show Bivens should extend to First/Fourth claims arising from clearing protests | This factual setting (federal officers clearing protesters near the White House) meaningfully differs from prior Supreme Court Bivens contexts | New context — yes; different from prior Supreme Court Bivens cases |
| Whether special factors counsel hesitation such that Bivens should not be extended (national security) | Protesters were peaceful and posed no threat; national-security rationale is pretextual | Area around the White House and presidential security raise national-security implications; judicial intrusion risks undermining executive security decisions | National security is a special factor counseling hesitation; bars Bivens remedy |
| Whether Congress’s Westfall Act and its preservation of constitutional claims requires permitting these Bivens claims | Westfall ‘‘left Bivens where it found it’’ and Congress was aware of Dellums, so Congress implicitly endorsed such Bivens remedies | Even if Westfall preserved pre-1988 Bivens, Supreme Court’s two-step test (new context + special factors) governs; Westfall does not compel extension | Westfall does not overcome the new-context / special-factors framework; plaintiffs’ Westfall argument rejected |
| Whether lack of alternative remedies requires creating a Bivens remedy here | Absence of adequate alternative remedies favors allowing Bivens damages | Alternative political, investigatory, or statutory remedies and separation-of-powers concerns counsel hesitation | Court did not decide on alternatives because national-security special factor alone foreclosed Bivens |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (created an implied damages remedy for federal Fourth Amendment violations)
- Davis v. Passman, 442 U.S. 228 (1979) (recognized a Bivens-style remedy for gender discrimination tied to Fifth Amendment rights)
- Carlson v. Green, 446 U.S. 14 (1980) (approved Bivens damages for Eighth Amendment prisoner abuse)
- Ziglar v. Abbasi, 582 U.S. 120 (2017) (established the modern two-step Bivens framework: new-context inquiry and special factors analysis)
- Egbert v. Boule, 142 S. Ct. 1793 (2022) (reiterated that extending Bivens is disfavored and refused to extend Bivens)
- Hernández v. Mesa, 140 S. Ct. 735 (2020) (recognized national-security/foreign-relations concerns as special factors limiting Bivens)
- Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977) (D.C. Cir. decision allowing Bivens-style relief for First Amendment arrests at the Capitol)
- Westfall v. Erwin, 484 U.S. 292 (1988) (prompted Congress to enact the Westfall Act concerning federal-employee tort liability)
- Quaker Action Group v. Morton, 516 F.2d 717 (D.C. Cir. 1975) (recognized security hazards posed by public gatherings near the White House)
- Wilkie v. Robbins, 551 U.S. 537 (2007) (suggested state-law remedies can obviate need for a Bivens remedy)