The ability to initiate litigation against federal officials seeking damages is limited

The Bivens decision [Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, (1971)] has permitted a cause of action for damages to proceed against federal officials in a limited number of alleged constitutional tort actions. 

Further, in the words of the U.S. Court of Appeal, Second Circuit in the instant matter, "The Supreme Court has expressly recognized only three contexts in which a Bivens remedy is available":

1. "Unreasonable search and seizure by federal officials in violation of the Fourth Amendment, Bivens, 403 U.S. 388;

2. "Gender-based employment discrimination by a United States Congressman in violation of the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979); and

3. "Federal prison officials’ deliberate indifference to an inmate’s serious medical needs in violation of the Eighth Amendment, Carlson v. Green, 446 U.S. 14 (1980)".

Further, said the Second Circuit, since the Carlson decision, supra, was handed down, the United States Supreme Court has repeatedly declined to extend Bivens, warning that “recognizing a cause of action under Bivens is ‘a disfavored judicial activity’”

In the instant litigation a federal District Court concluded that the Plaintiff could seek a Bivens remedy for his "failure-to-protect claim" and that the employee [Defendant] was not entitled to qualified immunity at this stage of litigation.

On de novo review, the United States Court of Appeals, Second Circuit, concluded that Plaintiff had no Bivens remedy under the circumstances of the instant case and that the federal District Court, therefore, had erred in denying Defendant’s motion to dismiss the Plaintiff's cause of action.

The Circuit Court then reversed the federal District Court's decision and remanded the case "with instructions to dismiss the complaint."

Click HERE to access the Second Circuit's decision posted on the Internet.