Jose Oliva v. United States of America

Case: 19-50795      Document: 00515550155          Page: 1    Date Filed: 09/02/2020




          United States Court of Appeals
               for the Fifth Circuit                                United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                                                    September 2, 2020
                                  No. 19-50795                        Lyle W. Cayce
                                                                           Clerk

 Jose L. Oliva,

                                                             Plaintiff—Appellee,

                                      versus

 Mario J. Nivar; Hector Barahona; Mario Garcia,

                                                       Defendants—Appellants.


                 Appeal from the United States District Court
                      for the Western District of Texas
                            USDC No. 3:18-CV-15


 Before Smith, Ho, and Oldham, Circuit Judges.
 Andrew S. Oldham, Circuit Judge:
        The question presented is whether to extend Bivens to a new context.
 The district court said yes. We say no. So we reverse and remand with
 instructions to dismiss the claims against the federal officers.
                                        I.
        On February 16, 2016, Jose Oliva attempted to enter a Veterans
 Affairs (“VA”) hospital in El Paso, Texas. The entrance to the hospital was
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  protected by VA police and metal detectors. While Oliva stood in line for the
 metal detector, he spoke with one of the officers. Somehow that conversation
 escalated into a physical altercation. That ended when VA police wrestled
 Oliva to the ground in a chokehold and arrested him. Oliva exhausted his
 administrative remedies and then sued the federal officers for damages under
 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 

403 U.S. 388

 (1971). He also brought claims against the United States under the
 Federal Tort Claims Act (“FTCA”).
        Oliva offered an affidavit with his version of the facts. Oliva stated:
 “Upon entry into the [hospital], I emptied my pockets and placed all items
 into an inspection bin as required.” VA Officer Nivar asked for identification,
 and Oliva “calmly explained . . . that it was in the inspection bin with [his]
 other personal items.” Oliva says he complied with all instructions from the
 VA police. Then, when Oliva tried to walk through the metal detector, three
 VA police officers (Nivar, Barahona, and Garcia) attacked him without
 provocation.
        The VA police officers offered a very different version of the facts.
 Officers Nivar, Barahona, and Garcia submitted materially identical
 affidavits. They stated that Oliva “attempted to enter the [hospital] without
 first clearing security.” The officers further averred that Oliva did not clear
 security because he failed to show identification.
        Security cameras captured the altercation on video, so we consider
 “the facts in the light depicted by the videotape.” Scott v. Harris, 

550 U.S. 372, 381

 (2007). The video is inconsistent with Oliva’s account of the facts
 in certain respects. For example, the video shows that Oliva did not place
 “all” of his items in the inspection bin. He’s plainly holding something in his
 hand when he attempts to walk through the metal detector. Moreover,
 Officer Nivar approaches Oliva with a pair of handcuffs before Oliva attempts




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 to walk through the metal detector. Thus, the video undermines (if not
 contradicts) Oliva’s statement that “[a]t no point before I was attacked, was
 I told that I was going to be arrested or detained.”
        After the altercation, Oliva sought medical treatment. Oliva had two
 shoulder surgeries, and he also sought treatment for post-traumatic stress
 disorder due to nightmares and anxiety stemming from this event. Relying on
 Bivens for his cause of action against the officers, Oliva sought money
 damages for violations of, inter alia, the Fourth Amendment. 1
        With respect to the Fourth Amendment claim, the district court held
 that “this case does not present a new Bivens context.” In the district court’s
 view, this case is just like Bivens because both cases involved excessive-force,
 unreasonable-seizure claims. Therefore, the district court held that Oliva has
 the right to recover damages under Bivens if his claims are not barred by
 qualified immunity. At summary judgment, the district court agreed with
 Oliva that his claims against the officers are not so barred. The officers timely
 appealed.
        Our review is de novo. See Garcia de la Paz v. Coy, 

786 F.3d 367, 371

 (5th Cir. 2015). Our “jurisdiction over qualified immunity appeals extends to
 elements of the asserted cause of action that are directly implicated by the
 defense of qualified immunity, including whether to recognize new Bivens
 claims.” 

Ibid.

 (quotation omitted).
                                           II.
        In cases like this one, the Supreme Court has said “the Bivens
 question” is “antecedent” to questions of qualified immunity. Hernandez v.


        1
           Oliva also claimed that the officers violated his rights under the Fifth
 Amendment. The district court dismissed that claim at the motion-to-dismiss stage. Nivar
 did not appeal it.




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 Mesa, 

137 S. Ct. 2003, 2006

 (2017). Courts confronting Bivens claims
 generally “must ask two questions. First, do [the plaintiff’s] claims fall into
 one of the three existing Bivens actions? Second, if not, should we recognize
 a new Bivens action here?” Cantú v. Moody, 

933 F.3d 414, 422

 (5th Cir. 2019).
 We say no and no.
                                         A.
        Bivens was the product of an “ancien regime” that freely implied rights
 of action. Ziglar v. Abbasi, 

137 S. Ct. 1843, 1855

 (2017) (quoting Alexander v.
 Sandoval, 

532 U.S. 275, 287

 (2001)). That regime ended long ago. 

Id.

 at 1855–
 56; see also Sandoval, 

532 U.S. at 287

 (“Raising up causes of action where a
 statute has not created them may be a proper function for common-law
 courts, but not for federal tribunals.” (quotation omitted)). Today, Bivens
 claims generally are limited to the circumstances of the Supreme Court’s
 trilogy of cases in this area: (1) manacling the plaintiff in front of his family in
 his home and strip-searching him in violation of the Fourth Amendment, see
 Bivens, 403 U.S. at 389–90; (2) discrimination on the basis of sex by a
 congressman against a staff person in violation of the Fifth Amendment, see
 Davis v. Passman, 

442 U.S. 228

 (1979); and (3) failure to provide medical
 attention to an asthmatic prisoner in federal custody in violation of the Eighth
 Amendment, see Carlson v. Green, 

446 U.S. 14

 (1980).
        Virtually everything else is a “new context.” See Abbasi, 

137 S. Ct. at 1865

 (explaining that “the new-context inquiry is easily satisfied”). As the
 Supreme Court has emphasized, our “understanding of a ‘new context’ is
 broad.” Hernandez v. Mesa, 

140 S. Ct. 735, 743

 (2020). That’s because “even
 a modest extension” of the Bivens trilogy “is still an extension.” Abbasi, 

137 S. Ct. at 1864

. And to put it mildly, extending Bivens to new contexts is a
 “disfavored judicial activity.” 

Id. at 1857

 (quotation omitted).




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        The district court contravened these limitations. It said, “[l]ike
 Bivens, this case involves allegations that Defendants . . . violated [Oliva’s]
 Fourth Amendment right to be free of excessive force.” That’s true but
 irrelevant. “Courts do not define a Bivens cause of action at the level of ‘the
 Fourth Amendment’ or even at the level of ‘the unreasonable-searches-and-
 seizures clause.’” Cantú, 

933 F.3d at 422

. Indeed, it is not enough even if “a
 plaintiff asserts a violation of the same clause of the same amendment in the
 same way.” 

Ibid.

        Instead, the question is whether this “case is different in a meaningful
 way from previous Bivens cases decided by [the Supreme] Court.” Abbasi,
 

137 S. Ct. at 1859

. If so, “then the context is new.” 

Ibid.

 As the Supreme
 Court has explained:
        Without endeavoring to create an exhaustive list of differences
        that are meaningful enough to make a given context a new one,
        some examples might prove instructive. A case might differ in
        a meaningful way because of the rank of the officers involved;
        the constitutional right at issue; the generality or specificity of
        the official action; the extent of judicial guidance as to how an
        officer should respond to the problem or emergency to be
        confronted; the statutory or other legal mandate under which
        the officer was operating; the risk of disruptive intrusion by the
        Judiciary into the functioning of other branches; or the
        presence of potential special factors that previous Bivens cases
        did not consider.
 

Id.

 at 1859–60.
        This case differs from Bivens in several meaningful ways. This case
 arose in a government hospital, not a private home. Cf. Bivens, 

403 U.S. at 389

. The VA officers were manning a metal detector, not making a
 warrantless search for narcotics. Cf. 

ibid.

 Judicial guidance varies across these
 contexts. See Cantú, 

933 F.3d at 423

 (“‘Judicial guidance’ differs across the




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 various kinds of Fourth Amendment violations—like seizures by deadly
 force, searches by wiretap, Terry stops, executions of warrants, seizures
 without legal process (‘false arrest’), seizures with wrongful legal process
 (‘malicious prosecution’), etc.”). The dispute that gave rise to Oliva’s
 altercation involved the hospital’s ID policy, not a narcotics investigation. Cf.
 Bivens, 

403 U.S. at 389

. The cases thus involve different legal mandates. Cf.
 Loumiet v. United States, 

948 F.3d 376, 382

 (D.C. Cir. 2020) (Katsas, J.)
 (contrasting enforcement of federal banking laws with enforcement of federal
 narcotics laws in new-context analysis). The VA officers did not manacle
 Oliva in front of his family or strip-search him. Cf. Bivens, 

403 U.S. at 389

.
 Contrariwise the narcotics officers did not place Webster Bivens in a
 chokehold. See 

ibid.

 In short, Oliva’s “claim involves different conduct by
 different officers from a different agency.” Cantú, 

933 F.3d at 423

. We could
 go on, but the point should be clear: the context is new.
                                        B.
        That leads to the second question: whether to engage in the
 “disfavored judicial activity” of recognizing a new Bivens action. Abbasi, 

137 S. Ct. at 1857

 (quotation omitted). For decades, 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

 (2001).
 And it recently reminded us, “for almost 40 years, we have consistently
 rebuffed requests to add to the claims allowed under Bivens.” Hernandez, 

140 S. Ct. at 743

.
        The Court’s reluctance to extend Bivens respects the separation of
 powers. “When evaluating whether to extend Bivens, the most important
 question ‘is “who should decide” whether to provide for a damages remedy,
 Congress or the courts?’” 

Id.

 at 750 (quoting Abbasi, 

137 S. Ct. at 1857

). The
 answer to that question is usually Congress. 

Ibid.

 So if any “special factors”




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 give us “reason to pause before applying Bivens in a new context or to a new
 class of defendants,” then we should not extend Bivens. Id. at 743; see also
 Canada v. United States, 

950 F.3d 299, 309

 (5th Cir. 2020) (“If any special
 factors do exist, then courts must refrain from creating an implied cause of
 action in that case.” (quotation omitted)).
         In this case, special factors counsel against extending Bivens. 2 First,
 Congress has designed an alternative remedial structure. As the Abbasi Court
 observed, “if there is an alternative remedial structure present in a certain
 case, that alone may limit the power of the Judiciary to infer a new Bivens
 cause of action.” 137 S. Ct. at 1858. Likewise, we have emphasized that “the
 existence of a statutory scheme for torts committed by federal officers”
 weighs against inferring a new cause of action. Cantú, 

933 F.3d at 423

.
 Although an alternative form of relief is not a necessary special factor, it may
 be a sufficient one. See Abbasi, 

137 S. Ct. at 1858

. “And when alternative
 methods of relief are available, a Bivens remedy usually is not.” 

Id. at 1863

.
         Consider the scheme Congress created here. A person in Oliva’s
 situation first proceeds through the VA’s administrative process. See 

28 U.S.C. § 2675

 (conditioning availability of an action for money damages
 against the United States on administrative exhaustion of the claim). Then




         2
            Oliva asserts that the officers forfeited the “special factors” issue by not raising
 it in their motion for summary judgement. Not so. Because Bivens is a judicially crafted
 remedy, a court asked to extend Bivens has a concomitant responsibility to “ask whether
 there are any special factors that counsel hesitation about granting the extension.”
 Hernandez, 

140 S. Ct. at 743

 (quotation omitted). Moreover, the district court discussed
 “special factors” arguments at length in its order denying Nivar’s motion to dismiss. And
 Oliva has briefed the issue here. So both the district court and Oliva had ample opportunity
 to address the issue.




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 he can bring his claims under the FTCA. See 

id.

 § 2680(h); Cantú, 

933 F.3d at 423

.
           Oliva followed that process. He started by filing an administrative
 complaint with the VA, which the VA denied on July 20, 2017. He then sued
 the United States under the FTCA, in addition to suing the individual VA
 officers under Bivens. Oliva’s own conduct shows there is an alternative
 remedial scheme for his claims.
           Oliva cannot negate this special factor by arguing that the FTCA
 doesn’t cover excessive-force claims. The Supreme Court has been clear that
 the alternative relief necessary to limit Bivens need not provide the exact
 same kind of relief Bivens would. See, e.g., Minneci v. Pollard, 

565 U.S. 118, 129

 (2012) (“State-law [tort] remedies and a potential Bivens remedy need
 not be perfectly congruent.”). That the FTCA might not give Oliva
 everything he seeks is therefore no reason to extend Bivens. See Hernandez,
 

140 S. Ct. at 750

 (“Congress’s decision not to provide a judicial remedy does
 not compel us to step into its shoes.”); cf. Sandoval, 532 U.S. at 286–87
 (explaining that if “a cause of action does not exist,” then “courts may not
 create one, no matter how desirable that might be as a policy matter”).
           Second, the separation of powers is itself a special factor. See Abbasi,
 

137 S. Ct. at 1862

. That is, we must consider what Congress has done and
 what Congress has left undone. With the FTCA, Congress waived the
 United States’ sovereign immunity as to some claims and not others. See
 Dolan v. U.S. Postal Serv., 

546 U.S. 481

, 484–85 (2006). Indeed, “[t]he
 FTCA waives the United States’ sovereign immunity for certain intentional
 torts committed by law enforcement officers.” Millbrook v. United States, 

569 U.S. 50, 54

 (2013). Yet Congress did not make individual officers statutorily
 liable for excessive-force claims. This “silence of Congress is relevant” to
 the special-factors inquiry. Abbasi, 

137 S. Ct. at 1862

.




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        These special factors give us “reason to pause” before extending
 Bivens. Hernandez, 

140 S. Ct. at 743

. In such cases, the Supreme Court has
 consistently “reject[ed] the request” to extend Bivens. 

Ibid.

 We do the same.

                                 *        *         *
        We REVERSE and REMAND with instructions to dismiss the
 claims against the federal officers.




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