In a ruling today (in Marquez v. Rodriguez), a Ninth Circuit panel, in an opinion by Judge Kenneth Lee, held that a pretrial detainee does not have an action for damages against federal prison officials who he alleges failed to protect him from other detainees in a jail. Invoking Supreme Court precedent, Judge Lee explained that the implied-damages remedy recognized five decades ago in Bivens v. Six Unknown Agents (1971) could not be extended to this Fifth Amendment failure-to-protect claim.
Judge Lee was appointed by Donald Trump. Judge Salvador Mendoza, Jr., appointed to the Ninth Circuit last year by President Biden, joined Lee’s opinion.
Liberal diehard William Fletcher concurred in the judgment while condemning it as a “miscarriage of justice.” Fletcher decried the fact that federal prisoners don’t have the same damages remedies against federal officers that state prisoners have against state officers:
The problem is easy to state. Section 1983, a post-Civil War statute, provides a cause of action for damages for violations of constitutional rights under color of state law. After almost a century of ignoring § 1983, the Supreme Court held in 1961 that it provides a cause of action for damages against state and local officials who have violated the Constitution. See Monroe v. Pape, 365 U.S. 167 (1961). However, there is no equivalent statute providing a cause of action for damages against a federal official.
The solution is also easy to state.
Fletcher had me all set up for his next sentence, which I thought would surely read something like:
Congress could enact an equivalent statute providing a cause of action for damages against a federal official.
But no. Instead, Fletcher leaps to assert that “the [Supreme] Court can infer a cause of action for damages directly from the Constitution”—a blanket extension of Bivens to all constitutional claims against federal officers.
But as Judge Lee explains, the Supreme Court’s “hesitancy [to extend Bivens remedies] is informed by the basic structure of our government—the separation of powers that vests the authority to create new federal causes of action in Congress, not the courts.”