Split Sixth Circuit Panel Holds that Government Did Not Forfeit Argument on Appeal That the Plaintiff Failed to State a Bivens Claim

In Elhady v. Unidentified CBP Agents, No.20-1339 (6th Cir. Nov. 19, 2021), the panel majority skips over the qualified immunity issue presented in the interlocutory appeal to hold that the plaintiff failed on the merits to state a Bivens claim against several border-patrol agents. The judges disagree about whether the government forfeited this merits argument on appeal.

“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. 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.” Elhady left custody and briefly hospitalized for possible exposure.

Elhady sued the officers for violating his Fifth Amendment due process rights. “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 judge also denied qualified immunity to one of the officers.

In the Sixth Circuit, on an interlocutory appeal of the immunity issue, “the parties’ briefs did not address the district court’s decision to extend Bivens,” so the panel “asked for supplemental briefing on this question.”

The panel majority grants judgment to the defendants, holding that there is no Bivens claim. Elhady argues that the merits argument does not get out of the gate because the government did not raise the issue on appeal. But the panel majority holds “[n]ot so.” It observes that a “cause of action’s availability under Bivens is an ‘antecedent’ question” to qualified immunity “that we can address even if it was not raised below.”

Citing the recent Hernandez v. Mesa (Hernandez II), 140 S. Ct. 735, 741 (2020), the panel majority holds that federal courts should seldom presume that a Bivens claim exists. “To bypass the Bivens question would ‘allow new causes of action to spring into existence merely through the dereliction of a party.’ Bistrian v. Levi, 912 F.3d 79, 88 (3d Cir. 2018). It would also risk ‘needless expenditure’ of time and money in cases like this one, where Supreme Court precedent can easily resolve Bivens’s applicability. See id. at 89 (citing Carlson, 446 U.S. at 17 n.2). Why analyze qualified immunity when it is an utterly unnecessary exercise?”

The order to addressing the Bivens question also has constitutional dimensions. “Plaintiffs like Elhady often have no cause of action unless we extend Bivens. And if there is no cause of action, courts should stop there” owing to the Article III case or controversy limitation. “The risk of issuing an advisory opinion is compounded in this context because addressing qualified immunity involves answering a constitutional question.”

Reaching the Bivens question, therefore, the panel majority holds that Bivens does not extend to the border context, again citing Hernandez II (which took place at the USA-Mexican border). Indeed, “[e]very other circuit (except the Ninth) faced with an invitation to expand Bivens to the border/immigration context has held firm. In a suit brought by a United States citizen against immigration officials for alleged Fourth Amendment violations, the Fourth Circuit refused to extend Bivens. Tun-Cos v. Perrotte, 922 F.3d 514, 528 (4th Cir. 2019), cert. denied, 140 S. Ct. 2565 (2020) . . . . In short, when it comes to the border, the Bivens issue is not difficult—it does not apply. And district courts would be wise to start and end there.”

Judge Rogers dissents, holding that the merits issue should await trial. “By choosing not to raise the issue on appeal, defendant Bradley, represented by the Department of Justice, forfeited his argument that Elhady does not have a cause of action under Bivens. As a general rule, we do not reach forfeited arguments. That rule should apply especially in cases such as this one, which involves a difficult question about the reach of Bivens that the Government repeatedly declined to ask us to address . . . . Although the Court has recently limited the reach of Bivens, it does not necessarily follow that U.S. citizens have no remedy if they are abused within the United States by their own border patrol officials. It is thus imprudent to reach the difficult Bivens question on this appeal when Government counsel for Bradley repeatedly indicated that he was not raising the issue.”

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