The Death of Bivens?
Rowland v. Matevousian and the Quiet Abandonment of Judicial Precedent
In Rowland v. Matevousian, the Tenth Circuit affirmed the dismissal of Dustin Rowland’s claims against federal prison officials, delivering a stark critique of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971). This decision not only leaves Rowland without a remedy but also raises profound questions about judicial precedent and the role of lower courts in following—or abandoning—binding Supreme Court decisions.
What is a “Bivens” Action?
A Bivens action allows individuals to sue federal officials for constitutional violations, akin to 42 U.S.C. § 1983, which provides remedies against state officials. Unlike § 1983, Bivens is judicially created and applies to federal actors. A Bivens action allows individuals to recover damages from federal officials for constitutional rights violations when no specific statute provides a remedy. It initially applied to Fourth Amendment claims, and was later extended to Fifth and Eighth Amendment cases, such as Davis v. Passman (1979) and Carlson v. Green (1980).
The Case:
Dustin Rowland, a federal inmate, sued under Bivens after prison officials allegedly failed to provide adequate medical care for his hernia, constituting deliberate indifference under the Eighth Amendment. His suit also included a negligence claim under the Federal Tort Claims Act (FTCA) and a request for injunctive relief for post-operative care.
The district court dismissed all claims, and the Tenth Circuit affirmed:
Bivens Claim: The court found Rowland’s case presented a “new context” for Bivens that was not supported under modern jurisprudence.
FTCA: Dismissed for failure to exhaust administrative remedies.
Injunctive Relief: Denied due to lack of administrative exhaustion for post-operative care.
The Tenth Circuit’s analysis of Bivens is particularly significant. It declared the doctrine “all but dead” due to the Supreme Court’s repeated refusal to extend it, citing Ziglar v. Abbasi (2017) and Egbert v. Boule (2022).
The court’s characterization of Bivens as "a relic of the 20th century" reflects a trend among lower courts to preemptively abandon precedent in light of the Supreme Court’s apparent hostility.
The Erosion of Bivens
Since Carlson, the Supreme Court has refused to expand Bivens. Recent cases emphasize separation of powers, arguing that creating new causes of action is a legislative function. This judicial retrenchment has led lower courts to treat Bivens with skepticism, limiting its application even within established contexts.
In Rowland, the Tenth Circuit went further, effectively declaring Bivens dead. The court asserted that Bivens no longer provides a meaningful remedy for constitutional violations, relying on Supreme Court guidance discouraging extensions of the doctrine.
Judicial Deference
The Tenth Circuit’s approach raises critical concerns about the role of lower courts in applying precedent.
Should a lower court effectively abandon binding law simply because the Supreme Court has not recently reaffirmed it?
Stare Decisis and Binding Precedent
Under stare decisis, lower courts are bound to follow precedent unless explicitly overturned. Bivens remains good law in the contexts it was originally applied. The Tenth Circuit’s decision to treat it as “dead” reflects a premature abandonment of precedent, as the Supreme Court has not formally overruled Bivens.
Lower courts are not tasked with predicting how SCOTUS might rule in the future. Their duty is to apply the law as it stands. By refusing to apply Bivens in Rowland, the Tenth Circuit arguably exceeded its authority.
Separation of Powers or Judicial Abdication?
The court justified its decision by emphasizing separation of powers, arguing that recognizing Bivens claims intrudes on legislative authority. While this concern is valid, the refusal to apply Bivens even in analogous contexts amounts to judicial abdication.
For example, Rowland’s claim of deliberate indifference aligns closely with Carlson v. Green, an Eighth Amendment case where Bivens was upheld. The Tenth Circuit distinguished Rowland’s case on minor factual differences, effectively denying relief where precedent might have supported it.
Chilling Effect on Constitutional Accountability
The erosion of Bivens leaves individuals like Rowland without meaningful remedies for constitutional violations. Without Bivens, federal officials enjoy near-absolute immunity, undermining the judiciary’s role as a check on government power.
Rowland’s case exemplifies this problem. He alleged that prison officials ignored his medical needs, delaying surgery and causing unnecessary suffering. Yet, the courts denied him relief based on procedural technicalities and the narrowing of Bivens.
Broader Implications
The Tenth Circuit’s treatment of Bivens reflects a broader judicial shift. Courts are increasingly reluctant to apply established precedents when they sense that SCOTUS might disapprove. This trend raises profound questions:
Should lower courts rely on Supreme Court "signals" to limit precedent without explicit overruling?
What happens to constitutional rights when judicial remedies like Bivens are quietly eroded?
The Tenth Circuit’s decision in Rowland illustrates the precarious state of Bivens. While SCOTUS has curtailed its scope, Bivens remains binding precedent in specific contexts. Lower courts' preemptive refusal to apply Bivens undermines stare decisis and leaves individuals without remedies for constitutional violations.
Until SCOTUS formally overturns Bivens, it remains good law, and lower courts should treat it as such. The question is not whether Bivens is “dead” but whether the judiciary will prematurely bury it.