PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-6655

VERNON NORMAN EARLE,

Plaintiff - Appellant,

v.

SHREVES, C/O; J. RIVERA, Unit Manager for M-Unit at FCI Hazelton; R. DOMAS, Unit Manager for L-Unit; D. WASHINGTON, Operating Lieutenant; MR. GONOUNDY, [SIA] Special Investigative Agent; MR. BRECKON, Assistant Warden of Operations; RACHEL THOMPSON, Administrative assistant/Remedy Coordinator; JENNIFER SAAD, Warden of FCI Hazelton; K. KELLY, Captain of FCI Hazelton; A. GYORKO, Case manager for Unit N-2 and for Plaintiff Directly; C. T. PULICE, Case Manager Coordinator; J. F. CARAWAY, Mid-Atlantic Regional Director; IAN CONNORS, National Inmates Appeals Administrator; MR. SQUIRES, [SIS] special investigative Service Lieutenant,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, District Judge. (2:17-cv-00004-JPB-RWT)

Argued: December 9, 2020 Decided: March 10, 2021

Before KEENAN and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge Traxler wrote the opinion, in which Judge Keenan and Judge Richardson joined. ARGUED: Olivia O’Hea, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Erin K. Reisenweber, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee. ON BRIEF: Erica Hashimoto, Director, Marcella Coburn, Supervising Attorney, Cynthia Anderson, Student Counsel, Matthew Angelo, Student Counsel, Connor Suozzo, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. William J. Powell, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellees.

2 TRAXLER, Senior Circuit Judge:

In this case, we are called on to determine whether the implied constitutional cause

of action recognized by the Supreme Court in Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics,

(1971), may be extended to include a federal

inmate’s claim that prison officials violated his First Amendment rights by retaliating

against him for filing grievances. As we will explain, such an extension of Bivens is not

permissible after Ziglar v. Abbasi,

(2017), and Tun-Cos v. Perrotte,

(4th Cir. 2019), cert. denied,

(2020), and we therefore affirm the

district court’s judgment dismissing the action.

I.

Plaintiff Vernon Earle is serving a life sentence after being convicted in the District

of Columbia of various charges including murder. In 2015, when the incidents involved

in this case occurred, Earle was serving his sentence at a federal correctional institution in

West Virginia.

According to the allegations of Earle’s complaint, Earle’s unit was locked down

after an inmate punched Defendant Michael Shreves, a correctional officer. During the

lockdown, Earle was denied hot meals and other privileges available to other inmates. He

subsequently filed two grievances complaining about Shreves’ conduct that precipitated

the lockdown. Instead of handling the grievances in the usual manner, officers turned them

over to Shreves, who directed another officer to place Earle and another complaining

inmate in administrative detention in the Special Housing Unit (SHU). Earle remained in

3 the SHU for 30 days; despite multiple requests, he was never told why he had been placed

in segregation.

Earle alleged that after he was released from the SHU, the warden told him he was

placed in the SHU because of the grievances he filed. The warden stripped Earle of his

prison job and transferred him to a different housing unit. Earle’s new case manager

unfairly increased Earle’s custody classification points because Earle “love[d] to file.” J.A.

21.

After exhausting prison remedies, Earle filed the complaint giving rise to this

appeal. Earle alleged that Shreve and numerous other named defendants conspired to

violate his First Amendment rights by retaliating against him for seeking resolution of his

informal grievances. He also contended his placement in the SHU violated the Fifth and

Eighth Amendments. The defendants moved to dismiss, or, in the alternative, for summary

judgment. They argued that the First Amendment claim should be dismissed as an

impermissible extension of Bivens after Ziglar. On the merits of the constitutional claims,

the defendants contended they were entitled to summary judgment because Earle could not

prove any constitutional violation and that they were entitled to qualified immunity. The

defendants submitted affidavits from Shreve and others asserting that Earle was placed in

the SHU pending an investigation into his grievances, which Shreve believed contained

threating language.

The district court granted summary judgment in favor of the defendants. Without

addressing whether a Bivens remedy was available, the court held that the First Amendment

claim failed “because there is no First Amendment right to file grievances.” J.A. 238. As

4 to the remaining claims, the district court held that Earle’s evidence was insufficient to

show a constitutional violation and that the defendants were therefore entitled to qualified

immunity. This appeal followed.

On appeal, Earle does not challenge the district court’s rejection of his claims under

the Fifth and Eighth Amendments. Accordingly, the only claim at issue in this appeal is

Earle’s Bivens claim alleging a conspiracy to violate his First Amendment rights.

II.

A.

A person whose constitutional rights have been violated by a state official may bring

an action seeking monetary damages against the official under

. “But §

1983 does not provide a cause of action against federal officials, and there is no analogous

statute imposing damages liability on federal officials.” Tun-Cos,

.

In Bivens, the Supreme Court recognized for the first time an implied cause of action

for damages against federal officers alleged to have violated a citizen’s rights under the

Constitution and permitted the plaintiff to seek compensatory damages from federal agents

alleged to have violated the Fourth Amendment. See

. In the years since

Bivens was decided, however, the Supreme Court’s approach to implied damage remedies

has changed dramatically, to the point that “expanding the Bivens remedy is now a

disfavored judicial activity.” Ziglar,

(internal quotation marks omitted).

Whether an implied damage remedy is available for a constitutional claim is

logically “antecedent” to any question about the merits of the claim. Hernandez v. Mesa,

(2017) (internal quotation marks omitted). The implied-remedy

5 question does not go to the jurisdiction of the court, and it is sometimes appropriate for a

court to assume the existence of a Bivens remedy and dispose of the claim by resolving the

constitutional question.

. In this case, because this area of the law is in flux and

guidance would be beneficial, we believe it is appropriate to determine whether a Bivens

remedy is available for Earle’s First Amendment claim. See Bistrian v. Levi,

(3d Cir. 2018) (“[T]hreshold questions are called that for a reason, and it will often be

best to tackle head on whether Bivens provides a remedy, when that is unsettled.”).

B.

As the Supreme Court explained in Ziglar, “it is a significant step under separation-

of-powers principles for a court to determine that it has the authority, under the judicial

power, to create and enforce a cause of action for damages against federal officials in order

to remedy a constitutional violation.” Ziglar,

. Accordingly, in the years

since Bivens was decided, the Court has proceeded cautiously. The Supreme Court has

refused to extend Bivens numerous times, see

, but has extended the Bivens

remedy beyond the Fourth Amendment to only two new contexts. The Court has permitted

a federal prisoner to pursue a Bivens claim raising an Eighth Amendment claim of

deliberate indifference to serious medical needs, see Carlson v. Green,

(1980), and it has also permitted an employee of a member of Congress to bring a Bivens

6 action alleging gender discrimination under the Due Process Clause of the Fifth

Amendment, see Davis v. Passman,

(1979). 1

Consistent with the Court’s view that further expansion of the Bivens remedy was

disfavored, the analytical framework established by the Ziglar Court places significant

obstacles in the path to recognition of an implied cause of action. “First, courts must

inquire whether a given case presents a ‘new Bivens context.’ If the context is not new . .

. then a Bivens remedy continues to be available.” Tun-Cos, 922 F.3d at 522–23 (quoting

Ziglar,

). “But if the context is new, then courts must, before

extending Bivens liability, evaluate whether there are ‘special factors counselling

hesitation in the absence of affirmative action by Congress.’ If any such ‘special factors’

do exist, a Bivens action is not available.”

at 523 (quoting Ziglar,

).

1.

We first consider whether this case involves a “new context” for Bivens purposes.

A case presents a new Bivens context “[i]f the case is different in a meaningful way from

previous Bivens cases decided by [the Supreme] Court.” Ziglar,

. Rather

than give a precise definition, the Court gave examples to illustrate the kinds of

“differences that are meaningful enough,”

to present a new context:

1 In Farmer v. Brennan,

(1994), the Supreme Court considered an inmate’s Bivens claim alleging that federal prison officials violated the Eighth Amendment through deliberate indifference to the inmate’s need for protection from other inmates. The Court acknowledged that the action was brought under Bivens, see

, but did not question the propriety of the Bivens remedy in that case. The Ziglar Court did not include Farmer in its list of accepted contexts for Bivens claims. Our resolution of this appeal, however, does not depend on Farmer’s precise status after Ziglar.

7 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 1860.

Although federal prison officials like the defendants in this case are already subject

to Bivens claims asserting Eighth Amendment violations, the claim at issue here arises

under the First Amendment and is governed by a very different body of case law. The

Supreme Court has never recognized a First Amendment based Bivens remedy in any

context. See Reichle v. Howards,

, 663 n.4 (2012) (“We have never held

that Bivens extends to First Amendment claims.”); Ashcroft v. Iqbal,

(2009) (assuming without deciding that Bivens extends to a First Amendment free exercise

claim); Bush v. Lucas,

(1983) (refusing to extend Bivens to a First

Amendment speech claim brought by federal employee). We therefore have little difficulty

concluding that, as Earle himself concedes, this case presents a new context for Bivens

purposes. See Tun-Cos,

(concluding that plaintiffs’ Fifth Amendment

claims presented a new context in part because the claims “have no analogue in the

Supreme Court’s prior Bivens cases”); Bistrian, 912 F.3d at 95–96 (finding federal

inmate’s First Amendment retaliation claim to present a new Bivens context because the

claim was “novel” “from the vantage of boundaries set by the Supreme Court”).

2.

8 Because this case presents a new Bivens context, we must determine whether there

are “special factors counselling hesitation” in implying a cause of action. Ziglar,

(internal quotation marks omitted). “If any such special factors do exist, a

Bivens action is not available.” Tun-Cos,

(internal quotation marks

omitted).

The focus of the special-factors inquiry is “whether the Judiciary is well suited,

absent congressional action or instruction, to consider and weigh the costs and benefits of

allowing a damages action to proceed. Thus, to be a ‘special factor counselling hesitation,’

a factor must cause a court to hesitate before answering that question in the affirmative.”

Ziglar,

.

It is not necessarily a judicial function to establish whole categories of cases in which federal officers must defend against personal liability claims in the complex sphere of litigation, with all of its burdens on some and benefits to others. It is true that, if equitable remedies prove insufficient, a damages remedy might be necessary to redress past harm and deter future violations. Yet the decision to recognize a damages remedy requires an assessment of its impact on governmental operations systemwide. Those matters include the burdens on Government employees who are sued personally, as well as the projected costs and consequences to the Government itself when the tort and monetary liability mechanisms of the legal system are used to bring about the proper formulation and implementation of public policies. These and other considerations may make it less probable that Congress would want the Judiciary to entertain a damages suit in a given case.

. . . . [I[f there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, the courts must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III.

9 In this case, we believe there are several special factors that counsel hesitation.

First, even without a Bivens cause of action, Earle is not completely without remedy. Like

all federal inmates, Earle has “full access to remedial mechanisms established by the BOP,

including suits in federal court for injunctive relief and grievances filed through the BOP’s

Administrative Remedy Program.” Corr. Servs. Corp. v. Malesko,

(2001);

see

(a) (“The purpose of the Administrative Remedy Program is to

“allow an inmate to seek formal review of an issue relating to any aspect of his/her own

confinement.”). While these alternate remedies do not permit an award of money damages,

they nonetheless offer the possibility of meaningful relief and therefore remain relevant to

our analysis.. See Schweiker v. Chilicky,

(1988) (declining to imply a

Bivens remedy for due process claims springing from the denial of Social Security benefits

despite unavailability of compensatory damages under alternate remedial scheme); Tun-

Cos,

(“The plaintiffs are correct that the protections provided by the

INA do not include a money damages remedy and often do not redress constitutional

violations that occur apart from removal proceedings. But this misses the point, for the

relevant question is not what remedy the court should provide for a wrong that would

otherwise go unredressed but instead whether an elaborate remedial system should be

augmented by the creation of a new judicial remedy.” (internal quotation marks and

alteration omitted)).

Moreover, Earle’s claim that he was placed in the SHU in retaliation for his

grievance raises serious questions relating “to the reasoning, manner, and extent of prison

discipline.” Bistrian,

. “Whether to place an inmate in more restrictive

10 detention involves real-time and often difficult judgment calls about disciplining inmates,

maintaining order, and promoting prison officials’ safety and security.”

. As the

Third Circuit explained, prison officials must have discretion “to determine detention

policies, to assess the endless variety of circumstances in which those policies may be

implicated, and to decide when administrative detention is deserved and for how long.”

. Given the ease with which an inmate could manufacture a claim of retaliatory

detention, 2 allowing a Bivens action for such claims could lead to an intolerable level of

judicial intrusion into an issue best left to correctional experts. See

(“The Bureau of

Prisons, not the judiciary, has the expertise, planning, and the commitment of resources

necessary for the difficult task of running a correctional facility.”) (internal quotation marks

omitted); see also Wetzel v. Edwards,

(4th Cir. 1980) (“It is a rule

grounded in necessity and common sense, as well as authority, that the maintenance of

discipline in a prison is an executive function with which the judicial branch ordinarily will

not interfere.”) (citation and internal quotation marks omitted).

In sum, the recognition of a Bivens remedy in this case would work a significant

intrusion into an area of prison management that demands quick response and flexibility,

and it could expose prison officials to an influx of manufactured claims. And while the

absence of a Bivens remedy forecloses any claims for monetary compensation, there are

nonetheless other avenues available to inmates that offer the possibility of meaningful

2 An inmate who engaged in misconduct could simply file a grievance related to his own action and then rely on that grievance to challenge any discipline subsequently imposed on him as retaliatory.

11 remedial relief for claims of retaliatory discipline. Under these circumstances, we believe

that Congress, not the Judiciary, is in the best position to “weigh the costs and benefits of

allowing a damages action to proceed.” Ziglar,

.

Accordingly, because we find special factors that counsel hesitation before

expanding the Bivens remedy, we must reject Earle’s attempt to extend the Bivens remedy

to his claim that the defendants violated his First Amendment rights by retaliating against

him for filing grievances. See Tun-Cos,

(“If any such special factors

[counseling hesitation] do exist, a Bivens action is not available.”) (internal quotation

marks omitted); see also Mack v. Yost,

(3d Cir. 2020) (applying

Ziglar to reject inmate’s Bivens claim that prison officials stripped him of his prison job in

retaliation or filing grievances); Callahan v. Federal Bureau of Prisons,

(6th Cir. 2020) (declining “to recognize a new Bivens action for free speech claims in

prisons”); Bistrian,

(concluding that the special-factors analysis precludes

extending Bivens to inmate’s claim that prison officials placed him in administrative

detention to retaliate for grievances filed by the inmate).

III.

For the foregoing reasons, we decline to expand the Bivens remedy to include the

First Amendment retaliation claim asserted by Earle. Because Earle has no cause of action,

12 we hereby affirm the district court’s judgment dismissing Earle’s First Amendment

retaliation claim. 3

AFFIRMED

3 See, e.g., McMahan v. Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers,

(4th Cir. 1992) (“We of course have the power to affirm a judgment for any reason appearing on the record, notwithstanding that the reason was not addressed below.”).

13