Elhady v. Unidentified CBP Agents

• Citation: 18 F.4th 880
• Decision Date: 19 November 2021
• Docket Number: No. 20-1339,20-1339
• Parties: Anas ELHADY, Plaintiff-Appellee, v. UNIDENTIFIED CBP AGENTS, et al., Defendants, Blake Bradley, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

18 F.4th 880

Anas ELHADY, Plaintiff-Appellee,

v.UNIDENTIFIED CBP AGENTS, et al., Defendants,Blake Bradley, Defendant-Appellant.

No. 20-1339

United States Court of Appeals, Sixth Circuit.

Argued: October 21, 2021

Decided and Filed: November 19, 2021

ARGUED: Casen B. Ross, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Justin Sadowsky, CAIR LEGAL DEFENSE FUND, Washington, D.C., for Appellee. ON BRIEF: Casen B. Ross, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Justin Sadowsky, Lena Masri, Gadeir I. Abbas, CAIR LEGAL DEFENSE FUND, Washington, D.C., for Appellee.

Before: ROGERS, GRIFFIN, and THAPAR, Circuit Judges.

THAPAR, J., delivered the opinion of the court in which GRIFFIN, J., joined. ROGERS, J. (pp. 887–89), delivered a separate dissenting opinion.

THAPAR, Circuit Judge.

In a lawsuit against federal officers, the first question a court should ask is whether a cause of action exists. The district court thought it did. We disagree and reverse.

I.

Anas Elhady, a United States citizen living in Michigan, drove to Canada to visit friends for the night. But on his return, border-patrol agents stopped him at the border and detained him for questioning.¹ During his detention, the officers took Elhady's jacket and shoes, leaving him wearing only his shirt, pants, undergarments, and socks. Elhady complained to the officers that the cell was cold, asking them to either return his jacket and shoes or provide a blanket. But he claims his requests went unanswered.

According to Elhady, the cell "got colder and colder," and he began shivering uncontrollably. R. 96-1, Pg. ID 1715–16. He says he yelled to the officers that he was freezing and needed to go to the hospital, but they told him not to worry, "you'll be out soon." Id. at 1716. Elhady thought the officers were intentionally ignoring his requests. After about four hours, the officers told him he could leave. But he told them he felt too ill to drive and needed to go to the hospital. So the officers called him an ambulance.

In the ambulance, the EMT noted that Elhady was alert, aware of his surroundings, and received the highest score on a test that measured his level of consciousness. The EMT also noted that Elhady had delayed capillary refill, which is consistent with exposure to the cold. But by the time he reached the hospital, his temperature was 96.08 degrees—which is barely below the normal range. So the treating physician gave him a blanket and let him rest. When Elhady woke up, the doctor told him he was "good to go." Id. at 1725.

Elhady later sued several border-patrol officers, including Blake Bradley, the lead officer assigned to his case. Elhady argues that the officers detained him under conditions that violated his Fifth Amendment due-process rights. And he seeks monetary damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

The defendants filed a motion to dismiss. Among other arguments, they suggested that applying Bivens to these circumstances would constitute an unwarranted extension of the doctrine. The district court disagreed. It found that though the case presented a new Bivens context, extending Bivens to provide an implied cause of action here was nevertheless appropriate.

The district court later granted summary judgment for all defendants except Officer Bradley. In Bradley's case, the district court found enough evidence to show he had violated Elhady's right to be "free from exposure to severe weather and temperatures." R. 122, Pg. ID 4691–92. And because the court also found that this right was clearly established, it held that qualified immunity did not protect Bradley.

Bradley appeals the denial of qualified immunity. Because the parties’ briefs did not address the district court's decision to extend Bivens , we asked for supplemental briefing on this question.

II.

The Supreme Court has recognized an implied cause of action to recover damages from federal officers who violate constitutional rights in only three narrow circumstances. See Bivens , 403 U.S. 388, 91 S.Ct. 1999 (Fourth Amendment search-and-seizure violation by federal narcotics agents); Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (Fifth Amendment employment-discrimination violation by a United States congressman); Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (Eighth Amendment inadequate-medical-care violation by prison officials). But as the Court recently reminded us, these cases rest on an outdated conception of our judicial role. Hernandez v. Mesa (Hernandez II) , ––– U.S. ––––, 140 S. Ct. 735, 741, 206 L.Ed.2d 29 (2020) ; Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 1855, 198 L.Ed.2d 290 (2017). They were handed down at a time when the Court routinely assumed that it was the judge's job to infer a cause of action whenever a substantive provision may have been violated, even if the text didn't offer one. Hernandez II , 140 S. Ct. at 741. Since 1980, however, the Supreme Court has "consistently refused to extend Bivens liability to any new context or new category of defendants." Corr. Servs. Corp. v. Malesko , 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) ; see also Callahan v. Fed. Bureau of Prisons , 965 F.3d 520, 523 (6th Cir. 2020). And that's not for want of opportunity. Indeed, the Court has reviewed the question on ten separate occasions. Hernandez II , 140 S. Ct. at 743 (collecting cases). Now the Court urges caution before we expand Bivens ’s reach. Malesko , 534 U.S. at 74, 122 S.Ct. 515.

Why? Because judges interpret laws. We do not make them. See Wayman v. Southard , 23 U.S. (10 Wheat.) 1, 46, 6 L.Ed. 253 (1825) (Marshall, C.J.) ("The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law."). It is Congress's job to decide when to provide a cause of action against federal employees. After all, that's a quintessentially legislative choice. The decision to bless a cause of action invariably involves "a host of considerations that must be weighed and appraised," including an "assessment of its impact on governmental operations systemwide." Abbasi , 137 S. Ct. at 1857–58 (citation omitted). That is not the sort of problem the judiciary is equipped to solve. Article III gives judges life tenure and salary protections. But one thing our commission does not award us is the license—or the competence—to tackle such a thorny task. That enterprise is better left "to those who write the laws rather than those who interpret them." Id. at 1857 (cleaned up).

To ensure respect for these foundational principles, the Supreme Court devised a two-part inquiry to determine when we should engage in the "disfavored judicial activity" of recognizing a new Bivens action. See id. And under this exacting test, the answer will almost always be never.

First, we ask whether the claim arises in a new Bivens context. And our "understanding of a ‘new context’ is broad." Hernandez II , 140 S. Ct. at 743. The context is new if it differs in virtually any way from the Bivens trilogy. Abbasi , 137 S. Ct. at 1859.

If the context does differ, we move to the second question: whether any special factors counsel against extending a cause of action. Id. at 1860. The Supreme Court has "not attempted to create an exhaustive list of factors," but it has explained that the separation of powers should be a guiding light. Hernandez II , 140 S. Ct. at 743 (cleaned up) (quoting Abbasi , 137 S. Ct. at 1857 ). For that reason, the Court has told us that we must not create a cause of action if there's "a single sound reason" to leave that choice to Congress. Nestlé USA, Inc. v. Doe , ––– U.S. ––––, 141 S. Ct. 1931, 1937, 210 L.Ed.2d 207 (2021). That's because we're not well-suited to decide when the costs and benefits weigh in favor of (or against) allowing damages claims. Cf. Abbasi , 137 S. Ct. at 1857–58. And trying to make those decisions would disrespect our limited role under the Constitution's separation of powers, even if we think it would be good policy to do so. Hernandez II , 140 S. Ct. at 731.

The district court found that Bivens extends to Elhady's claims. And Elhady suggests that we shouldn't review that decision. So before analyzing the Bivens question itself, we consider whether it is proper for us to do so.

A.

Elhady gives two reasons why we shouldn't review the Bivens question at this time.

First, he contends that we lack jurisdiction to consider the availability of a Bivens cause of action on an interlocutory appeal of qualified immunity. But as the Court has explained, appellate courts have jurisdiction over the Bivens issue on interlocutory appeal because the question is "directly implicated by the defense of qualified immunity." Wilkie v. Robbins , 551 U.S. 537, 549 n.4, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (citation omitted); cf. Koubriti v. Convertino , 593 F.3d 459, 466 (6th Cir. 2010).

Second, Elhady argues that Bradley forfeited the issue because he did not challenge the district court's finding on appeal.² Not so. A cause of action's availability under Bivens is an "antecedent" question that we can address even if it was not raised below. Hernandez v. Mesa (Hernandez I) , ––– U.S. ––––, 137 S. Ct. 2003, 2006–07, 198 L.Ed.2d 625 (2017) (per curiam). Indeed, the Supreme Court has already paved this particular path. See, e.g. , Carlson , 446 U.S. at 17 n.2, 100 S.Ct. 1468 ; see also Adrian Vermeule, Saving Constructions , 15 Geo. L.J. 1945, 1948–49 & n.20 (1997) (citing several cases where the Supreme Court decided the matter on "an antecedent statutory issue, even one waived by the parties, if its resolution could preclude a constitutional claim"). So we may address the question. But should we?

In short, yes. In Hernandez v. Mesa (Hernandez I) , the Court advised lower courts in our position—that is, reviewing an...