Radiya Buchanan , Et Al . v. William P. Barr, I Nhis Individual Capacity As Former U.s. Attorney General , Et Al .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 4, 2023 Decided June 23, 2023
No. 22-5133
RADIYA B UCHANAN , ET AL .,
APPELLANTS
v.
W ILLIAM P. BARR, I N HIS INDIVIDUAL CAPACITY AS FORMER
U.S. ATTORNEY GENERAL , ET AL .,
APPELLEES
Consolidated with 22-5139
Appeals from the United States District Court
for the District of Columbia
(No. 1:20-cv-01542)
(No. 1:20-cv-01469)
Scott Michelman and Lee R. Crain argued the causes for
appellants. With them on the briefs were Anne Champion,
Arthur B. Spitzer, Dennis Corkery, Jonathan M. Smith, Jon

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Greenbaum, Arthur Ago, David Brody, John A. Freeman, and
David E. Kouba.
Scott F. Regan and Victoria Clark were on the brief for
amici curiae Institute for Justice and Foundation for Individual
Rights and Expression in support of appellants.
Gabriel K. Gillett, Ishan K. Bhabha, and Lauren J. Hartz
were on the brief for amici curiae Bipartisan Former Members
of Congress in support of appellants.
Sarah Helene Duggin, Donald Crane, Kwaku A. Akowuah,
Tobias S. Loss-Eaton, and Lakeisha F. Mays were on the brief
for amici curiae Clergy and Religious Institutions in support of
appellants.
Brian J. Springer, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Mark B. Stern, Attorney.
Christopher A. Zampogna was on the brief for appellee
Sean Kellenberger.
Before: WILKINS and W ALKER, Circuit Judges, and
SENTELLE , Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE .
Concurring opinion filed by Circuit Judge W ILKINS .
Concurring opinion filed by Circuit Judge W ALKER.

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SENTELLE , Senior Circuit Judge: Appellants, individual
protestors and Black Lives Matter D.C., brought these
consolidated actions against federal law enforcement officers,
alleging that officers’ actions in clearing protestors from
Lafayette Park in June 2020 violated their First, Fourth, and
Fifth Amendment rights and seeking damages under Bivens v.
Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Appellees, former Attorney
General Barr and various named U.S. Park Police officers,
moved to dismiss the claims, arguing that a Bivens remedy is
unavailable in this context. The district court granted the
motions, and this appeal followed. Applying Supreme Court
precedent, we hold that Appellants’ claims arise in a new
context and that special factors counsel hesitation against
extending the availability of Bivens claims to that context.
Accordingly, we affirm.
I. Background
We review the district court’s dismissal of Appellants’
claims de novo and accept as true all well-pleaded factual
allegations. Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1113 (D.C. Cir. 2000). Following the killings of George Floyd
and Breonna Taylor, protestors, including Appellants, gathered
in Lafayette Square across from the White House in
Washington, D.C., to protest racism and police brutality. On
the evening of June 1, 2020, at the order of Attorney General
Barr, federal law enforcement officers began clearing
protestors from the park using physical force, chemical
irritants, and munitions. Officers fired tear gas, rubber bullets,
flash grenades, and pepper spray into the crowd, hitting and
injuring many. Appellants were struck with batons and rubber
bullets, experienced adverse reactions to the chemical irritants,
and suffered emotional and psychological harm.

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While officers cleared protestors from the park, President
Trump was on the opposite side of the White House giving a
speech in the Rose Garden. Minutes later, after protestors were
out of the area, President Trump, Attorney General Barr, and
other senior officials walked through Lafayette Park to St.
John’s Church and took a photograph.
Senior administration officials gave conflicting statements
on the rationale for clearing the park, including that it was done
to enforce the city’s curfew, which was not until twenty-five
minutes after officers began clearing the park; to expand the
security perimeter surrounding the White House; to protect St.
John’s Church, which had suffered fire damage the day before
but was not encompassed by the expanded perimeter; and to
curtail ongoing violence. Appellants have alleged that the
dispersal was done to facilitate the President’s photo
opportunity at St. John’s Church.
Appellants sued, bringing, inter alia, Bivens claims to
recover damages for the Government’s alleged violations of
their First, Fourth, and Fifth Amendment rights. The district
court granted the Government’s motions to dismiss the claims
after holding that the claims arose in a new context and that
three special factors—national security, Congress’s
involvement in the intersection between presidential security
and protestors’ rights, and the availability of alternative
remedies—counselled hesitation against extending Bivens to
that context. This appeal followed.
II. Analysis
Starting with Bivens in 1971 and over the course of the
following nine years, the Supreme Court has three times
recognized that “victims of a constitutional violation by a
federal agent have a right to recover damages against the

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official in federal court despite the absence of any statute
conferring such a right.” Carlson v. Green, 446 U.S. 14, 18
(1980); see Bivens, 403 U.S. at 397; Davis v. Passman, 442
U.S. 228 (1979). Those three cases permitted claims for
damages under the Fourth Amendment for an alleged violation
of the prohibition against unreasonable searches and seizures,
see Bivens, 403 U.S. at 389, under the Fifth Amendment for
alleged sex discrimination by a Congressman, see Davis, 442
U.S. at 231, 248, and under the Eighth Amendment for an
alleged violation of the prohibition against cruel and unusual
punishment, see Carlson, 446 U.S. at 17–18. Such “authority
to imply a new constitutional tort, not expressly authorized by
statute, is anchored in our general jurisdiction to decide all
cases ‘arising under the Constitution, laws, or treaties of the
United States.’” Corr. Servs. Corp. v. Malesko, 534 U.S. 61,
66 (2001) (quoting 28 U.S.C. § 1331). In the forty years
following those three decisions, however, the Supreme Court
has not recognized a new Bivens claim. See Egbert v. Boule,
142 S. Ct. 1793, 1799 (2022). While Bivens and its progeny
have not been overruled and claims for damages arising under
the Constitution remain available in some circumstances, the
Supreme Court has recognized that creating implied causes of
action under Bivens is “a disfavored judicial activity.” Id. at
1803 (quoting Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)).
The Supreme Court has set out a two-part test to determine
whether to permit a Bivens claim. First, courts must ask if the
claim arises in a “new context” from the three previous Bivens
claims recognized by the Supreme Court. Id. at 1803. If the
context is not new, the claim can go forward. But if the context
is new, courts move to the second step and ask whether, absent
any “affirmative action by Congress,” there are any “special
factors counselling hesitation” against extending Bivens to that
context. Ziglar, 582 U.S. at 136 (quoting Carlson, 446 U.S. at
18). “If there is even a single ‘reason to pause before applying

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Bivens in a new context,’ a court may not recognize a Bivens
remedy.” Egbert, 142 S. Ct. at 1803 (quoting Hernández v.
Mesa, 140 S. Ct. 735, 743 (2020)). The guiding principle
behind the inquiry is respect for the separation of powers and
deference to Congress’s preeminent role as the legislative
body. See Egbert, 142 S. Ct. at 1803; see also Ziglar, 582 U.S.
at 135–36.
Appellants’ primary argument focuses on Congress’s
enactment of the Westfall Act of 1988, which requires that the
United States be substituted as the defendant in all tort claims
against employees of the federal government acting in their
official capacities. See 28 U.S.C. § 2679(b)(1); see also id.
§ 1346(b)(1). Notably, however, the Act carves out an
exception for, and thus preserves the availability of, “civil
action[s] against an employee of the Government . . . which
[are] brought for a violation of the Constitution of the United
States.” Id. § 2679(b)(2)(A). In other words, the Westfall Act
“left Bivens where it found it.” Hernández, 140 S. Ct. at 748
n.9.
Appellants invoke the prior construction canon, arguing
that the Westfall Act “left Bivens” as it had been interpreted by
the Supreme Court and in notable Courts of Appeals decisions
prior to 1988. Specifically, Appellants rely on this Court’s
1977 decision in Dellums v. Powell, 566 F.2d 167 (D.C. Cir.
1977), in which we affirmed the availability of a Bivens remedy
for alleged First Amendment violations and upheld defendants’
liability under Bivens after individuals protesting the Vietnam
War had been arrested on the steps of the Capitol, id. at 173–
74, 194–96. Appellants argue that because Congress was
presumably aware of that decision, by passing the Westfall Act
and “le[aving] Bivens where it found it,” Hernández, 140 S. Ct.
at 748 n.9, Congress affirmatively endorsed Dellums and the
availability of Bivens remedies in analogous circumstances.

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And because, definitionally, there can be no “special factors
counselling hesitation in the absence of affirmative action by
Congress,” Ziglar, 582 U.S. at 136 (quoting Carlson, 446 U.S.
at 18), where Congress has affirmatively acted, Appellants
further argue that their own analogous Bivens claims—also
based on alleged First and Fourth Amendment violations, in
addition to an alleged Fifth Amendment violation, arising from
a protest outside the seat of a branch of government—must be
allowed to proceed.
Appellants may be hoist with their own petard; if Congress
is aware of and incorporates prior court decisions, then
Congress also should have been aware of the Supreme Court’s
admonition against expanding the range of the Bivens remedy,
as recognized by Supreme Court precedent at the time. Cf. Bush
v. Lucas, 462 U.S. 367, 390 (1983) (declining to extend Bivens
beyond circumstances recognized in prior Supreme Court
cases); Chappell v. Wallace, 462 U.S. 296 (1983) (same);
United States v. Stanley, 483 U.S. 669 (1987) (same). As
Supreme Court precedent makes clear, any new Bivens claim
must still “satisf[y] the ‘analytic framework’ prescribed by the
last four decades of intervening case law.” Egbert, 142 S. Ct.
at 1809 (quoting Ziglar, 582 U.S. at 139); cf. Hernández, 140
S. Ct. at 748 n.9 (“[The Westfall Act’s exception for Bivens
claims] is not a license to create a new Bivens remedy in a
context [the Supreme Court] ha[s] never before addressed.”
(citation omitted)); Meshal v. Higgenbotham, 804 F.3d 417,
428 (D.C. Cir. 2015) (“[U]ncertain interpretations of what
Congress did in . . . 1988 cannot overcome the weight of
authority against expanding Bivens.”).
Turning then to that framework, we hold that Appellants’
claims arise in a new context and that national security is a
special factor counselling hesitation against extending Bivens
to that context. First, neither party contends that these claims

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do not arise in a new context, and for good reason. What
constitutes a “new context” is exceedingly broad. “If the case
is different in a meaningful way from previous Bivens cases
decided by [the Supreme] Court, then the context is new.”
Ziglar, 582 U.S. at 139. Examples of meaningful differences
include “the rank of the officers involved[,] the constitutional
right at issue,” and “the risk of disruptive intrusion by the
Judiciary into the functioning of other branches.” Id. at 139–
40. Appellants’ First, Fourth, and Fifth Amendment claims
satisfy this test. The Supreme Court has never recognized the
availability of Bivens claims for First Amendment violations.
See Egbert, 142 S. Ct. at 1807 (“[W]e have never held that
Bivens extends to First Amendment claims.” (citation
omitted)); Bush, 462 U.S. at 390. Appellants’ Fourth and Fifth
Amendment claims likewise arise in a new context because the
clearing of protestors from a public park by federal law
enforcement officers is notably different from an unlawful
search and arrest by federal narcotics officers, see Bivens, 403
U.S. at 389–90, and from sex discrimination by a
Congressman, see Davis, 442 U.S. at 231.
Claims that arise in a new context are not necessarily
precluded, however, so long as there are no “special factors
counselling hesitation” against extending Bivens to that
context. Ziglar, 582 U.S. at 136 (quoting Carlson, 446 U.S. at
18). As with the “new context” test, what constitutes a “special
factor” is interpreted broadly. See Egbert, 142 S. Ct. at 1805
(“A court inevitably will ‘impair’ governmental interests, and
thereby frustrate Congress’ policymaking role, if it applies the
‘“special factors” analysis’ at such a narrow ‘level of
generality.’” (alterations omitted) (quoting Stanley, 483 U.S. at
681)). Where there is even the “potential” that “‘judicial
intrusion’ into a given field might be ‘harmful’ or
‘inappropriate,’” courts cannot permit Bivens claims to

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proceed. Id. at 1805 (emphasis omitted) (quoting Stanley, 483
U.S. at 681).
As the Supreme Court has made clear in recent years, “a
Bivens cause of action may not lie where . . . national security
is at issue.” Egbert, 142 S. Ct. at 1805; see Hernández, 140 S.
Ct. at 746–47. Appellees argue that national security concerns
regarding the safety of the President and the area surrounding
the White House justify finding a special factor in this case.
Appellants rely on their well-pleaded allegation that “the law-
abiding, peaceful protestors posed no threat to the President.”
Appellants’ Opening Br. at 44. But Appellants misunderstand
the applicable standard. Officers need not have been
responding to an ongoing or imminent threat to national
security to invoke national security as a special factor. See
Hernández, 140 S. Ct. at 746 (“The question is not whether
national security requires such conduct . . . .” (emphasis
added)). Instead, courts ask whether they “should alter the
framework established by the political branches” for handling
cases with possible national security implications. Id. Because
“[n]ational-security policy is the prerogative of the Congress
and President,” the answer most often will be no. Ziglar, 582
U.S. at 142.
Under any of the proffered explanations given for clearing
protestors from Lafayette Park, Appellees’ actions implicate
national security under the Supreme Court’s broad
understanding of that special factor. While we recognize that
Lafayette Square is a “unique situs” for First Amendment
activity, “it cannot be denied that a public gathering presents
some measure of hazard to the security of the President and the
White House.” Quaker Action Grp. v. Morton, 516 F.2d 717,
725, 731 (D.C. Cir. 1975). Given the nation’s “overwhelming
. . . interest in protecting the safety of its Chief Executive,”
Watts v. United States, 394 U.S. 705, 707 (1969), officers in

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the area surrounding the White House and the President must
be able to act without hesitation. But faced with “[t]he risk of
personal damages liability,” officers are more likely “to
second-guess difficult but necessary decisions concerning
national-security policy,” Ziglar, 582 U.S. at 142, including
decisions regarding presidential and White House security.
Because “regulating the conduct of [law enforcement officers
near the White House] unquestionably has national security
implications, the risk of undermining [presidential and White
House] security provides reason to hesitate before extending
Bivens into this field.” Hernández, 140 S. Ct. at 747.
Appellants caution that such a ruling creates a
“Constitution-free zone” by precluding Bivens claims for any
constitutional violation occurring in Lafayette Square due to its
sensitive location, Appellants’ Opening Br. at 45, and treats
national security as a “talisman used to ward off inconvenient
claims,” Ziglar, 582 U.S. at 143. Without purporting to decide
the availability of any Bivens claim arising from events in
Lafayette Park under other circumstances, we note that to the
extent Appellants’ fears come to fruition, it is a result of
heeding the Supreme Court’s admonition to “ask ‘more
broadly’ if there is any reason to think that ‘judicial intrusion’
into a given field might be ‘harmful’ or ‘inappropriate.’”
Egbert, 142 S. Ct. at 1805 (alteration omitted) (quoting Stanley,
483 U.S. at 681) (emphasis added). Finally, it bears mention
that First Amendment activity in Lafayette Park remains
constitutionally protected. We decide only the availability of
damages, not the existence of a constitutional violation. To the
extent damages under a federal cause of action are necessary
for full enjoyment of that constitutional right, such
endorsement must come from the Supreme Court or from
Congress.

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Because the presence of one special factor is sufficient to
preclude the availability of a Bivens remedy, we do not reach
Appellees’ other special factors arguments regarding the
availability of alternative remedies, congressional involvement
in the intersection between presidential security and protestors’
rights, the political branches’ activity in investigating the
events underlying Appellants’ claims, and the risk that
discovery might expose “sensitive Executive Branch
communications between high-ranking officials.” Gov’t
Appellees’ Br. at 24–25; see Egbert, 142 S. Ct. at 1803 (“‘Even
a single sound reason to defer to Congress’ is enough to require
a court to refrain from creating such a remedy.” (alteration
omitted) (quoting Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931,
1937 (2021))).
III. Conclusion
Mindful of our obligation to faithfully apply Supreme
Court precedent and avoid arrogating legislative power, we
affirm.

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WILKINS , Circuit Judge, concurring: I join the majority
opinion in full. Supreme Court precedent requires us to affirm
the District Court’s dismissal of Appellants’ Bivens claims. As
our opinion explains, those claims arise in a “new context,” and
the “special factor” of national security precludes us from
extending Bivens to that new context. I write separately
because in my view, applying that precedent here would seem
to undermine the very separation-of-powers concerns that
underlie modern Bivens doctrine in the first place.
The Supreme Court has long “presume[d] that
Congress[,]” when it legislates, is “thoroughly familiar with . .
. unusually important precedents” from not only the Supreme
Court but also the Courts of Appeals. Cannon v. Univ. of Chi.,
441 U.S. 677, 698–99 & n. 23 (1979). Examples abound across
a wide range of statutory contexts. For instance, in construing
the Copyright Act’s safe-harbor provision, the Court recently
found “no indication that Congress intended to alter” a similar
rule established by prior lower court decisions. Unicolors, Inc.
v. H&M Hennes & Mauritz, LP, 142 S. Ct. 941, 947–48 (2022)
(“When Congress codifies a judicially defined concept, it is
presumed, absent an express statement to the contrary, that
Congress intended to adopt the interpretation placed on that
concept by the courts.” (quoting Davis v. Mich. Dep’t of
Treasury, 489 U.S. 803, 813 (1989)). Similarly, in interpreting
the scope of a judicial review provision of the Immigration and
Nationality Act, the Court “assume[d] that Congress” was
“aware” of “lower court precedent” regarding the scope of
habeas review and intended its enactment to conform with that
view. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1072
(2020). When Congress amended a provision of the
Bankruptcy Code, the Court subsequently reasoned that
Congress was “presumptively . . . aware” of prior lower court
opinions interpreting the same phrase and that Congress
therefore “intended it to retain its established meaning.”
Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1762
& n.3 (2018). The Court has made the same presumption in

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interpreting Title VII, see Albemarle Paper Co. v. Moody, 422
U.S. 405, 414 & n.8 (1975), Title IX, see Cannon, 441 U.S. at
698 n.23, the Americans with Disabilities Act, see Lorillard v.
Pons, 434 U.S. 575, 580–81 (1978), and the National Labor
Relations Act, see NLRB v. Gullett Gin Co., 340 U.S. 361, 365–
66 (1951). This presumption holds for not only civil but also
criminal statutes, see Abuelhawa v. United States, 556 U.S. 816
(2009), and equally when Congress does not act, i.e., when it
“retain[s] . . . statutory text” that has been construed by the
Courts of Appeals. Tex. Dep’t of Hous. & Cmty. Affairs v.
Inclusive Cmtys. Project, 576 U.S. 519, 535–37 (2015).
Applying that rule here, Congress was presumably aware
of our decision in Dellums v. Powell, 566 F.2d 167 (D.C. Cir.
1977), when it enacted the Westfall Act in 1988, which
preserved a damages remedy against individual federal officers
for constitutional violations. Pub. L. No. 100-694, § 5, 102
Stat. 4563 (1988) (codified at 28 U.S.C. § 2679(b)(2)(A)). By
any measure, Dellums was an “unusually important
precedent[.]” Cannon, 441 U.S. at 699. The events giving rise
to Dellums had garnered nationwide media attention, and we
held for the first time that a Bivens remedy was available for
certain First Amendment violations. Not only that, the
“presumption is particularly appropriate here” because of the
unique nexus between the facts and parties of that case and
Congress itself. Lorillard, 434 U.S. at 581. The lead plaintiff
in Dellums was a member of Congress, the case arose from
mass arrests during a nationally prominent protest on the steps
of the Capitol, and members of both the House and Senate
made floor remarks regarding the events of that day. See
Bipartisan Former Members of Cong. Amicus Br. 21–23 & n.15
(collecting statements of members of Congress).
If we are also to presume, in the words of the Supreme
Court, that the Westfall Act “left Bivens where it found it” in

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1988, Hernandez v. Mesa, 140 S. Ct. 735, 748 n.9 (2020), then
Congress must have intended to leave Dellums v. Powell where
it found it—that is, as good law. There is no compelling reason
to conclude otherwise. The Supreme Court denied certiorari
in Dellums, see 438 U.S. 916 (1978), and no decision prior to
1988, either of that Court or our court, cast doubt on Dellums’s
validity.1 To be sure, and as the majority opinion
acknowledges, by 1988 the Court had declined several times to
expand the range of the Bivens remedy “beyond circumstances
recognized in prior Supreme Court cases.” Maj. Op. 7. But
that does not undermine the key point. Declining to discuss
important lower court precedent is not the same as calling that
precedent into question or sub silentio overruling it. More
importantly, it is even more unclear that Congress would have
understood any of the Court’s pre-1988 cases to have that
effect, that is, to render wholly irrelevant all existing lower
court Bivens precedent. In other words, a few cases in which
the Court exercised caution before extending Bivens to new
contexts cannot overcome the strong and well-settled
presumption that Congress was aware of a case like Dellums.
Thus, deferring to Congress—as the Supreme Court has
repeatedly urged courts to do in deciding the viability of Bivens
claims—would counsel strongly in favor of recognizing such
1 In 1983, the Supreme Court declined to find available a Bivens
remedy for a First Amendment retaliation claim brought by a federal
civil service employee. Bush v. Lucas, 462 U.S. 367 (1983). In
reaching that conclusion, the Court observed that Congress had
already created “an elaborate remedial system . . . with careful
attention to conflicting policy considerations,” to address such
claims. Id. at 388. It saw no need to supplement that
“comprehensive” scheme of existing statutory remedies with a
judge-made one. Id. at 388–90. In contrast, no such remedial system
existed that would have offered the Dellums plaintiffs alternative
relief. Thus, Bush v. Lucas did not call into question Dellums.

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claims in cases analogous to Dellums. See Egbert v. Boule, 142
S. Ct. 1793, 1802–04 (2022) (“[T]he most important question
is who should decide whether to provide for a damages remedy,
Congress or the courts? . . . If there is a rational reason to think
that the answer is ‘Congress’—as it will be in most every case,
. . . no Bivens action may lie.” (internal quotations and citations
omitted)); Hernandez, 140 S. Ct. at 750; Ziglar v. Abbasi, 582
U.S. 120, 135–36 (2017). As Appellants and the former
members of Congress amici argue, it is hard to imagine a case
more analogous to Dellums than this one. The following
describes equally both cases: Plaintiffs allege that federal
officers used violence to clear a peaceful protest in a
quintessential public forum for political speech in our nation’s
capital, for viewpoint-discriminatory reasons.
The problem for Appellants with this line of reasoning is
that the Supreme Court’s “new context” test renders irrelevant
all pre-1988 lower court decisions recognizing Bivens claims,
including Dellums. The “new context” inquiry considers only
prior Supreme Court—not lower court—precedent. Egbert,
142 S. Ct. at 1803; Loumiet v. United States, 948 F.3d 376, 382
(D.C. Cir. 2020) (“[T]he new-context analysis may consider
only Supreme Court decisions . . .”). In turn, courts may not
“justify a Bivens extension based on parallel circumstances”
with pre-1988 cases. Egbert, 142 S. Ct. at 1809 (internal
quotations omitted). We must follow that precedent. I simply
observe that here, that precedent “is in tension with the Court’s
insistence that ‘prescribing a cause of action is a job for
Congress, not the courts.’” See Egbert, 142 S. Ct. at 1823
(Sotomayor, J., concurring in the judgment in part and
dissenting in part) (quoting majority opinion).

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WALKER , Circuit Judge, concurring:
Protesters say federal officers violated their constitutional
rights by forcibly dispersing a demonstration outside the White
House. So they sued for damages, claiming that the Constitu-
tion gives them permission to bring their suit. See Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
But as the Court’s opinion explains, the protesters’ claims
do not fit any recognized cause of action under the Constitu-
tion. And gone are the days when federal courts could invent
new remedies to redress the protesters’ injuries. See Egbert v.
Boule, 142 S. Ct. 1793, 1803 (2022).
Yet that does not mean the protesters have no way to re-
cover. For most of our history, those injured by federal offic-
ers’ unconstitutional conduct could sue for damages in state
court. The Framers saw state common-law suits as an im-
portant check on federal misconduct.
Some have assumed that those suits are now precluded by
the Westfall Act. It bars many “civil action[s] . . . for money
damages” filed to redress “injury or loss . . . resulting from”
federal officers’ conduct. 28 U.S.C. § 2679(b)(1). But it also
has an exception. It does not bar “a civil action . . . brought for
a violation of the Constitution of the United States.” Id.
§ 2679(b)(2)(A).
That exception might preserve state tort suits “brought” to
remedy constitutional injuries. Reading the Act that way ac-
cords with Founding-era principles of officer accountability
and closes the remedial gap left by today’s narrow approach to
remedies under the Constitution — ensuring relief for those
unconstitutionally injured by federal officers.

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I. Tort Suits Against Federal Officers Today
Tort suits against federal officers are channeled through
the Federal Tort Claims Act. 28 U.S.C. § 2679. That’s because
another statute — the Westfall Act — makes the FTCA “the
exclusive remedy for most claims against [federal] employees
arising out of their official conduct.” Hui v. Castaneda, 559
U.S. 799, 806-07 (2010) (citing 28 U.S.C. § 2679(b)(1)). So
tort victims generally cannot sue federal officers personally un-
der state law. Id.
But the FTCA’s remedies are limited. It puts procedural
and substantive limits on claims that would otherwise be avail-
able under state law. See, e.g., id. §§ 2675(a) (claims must first
be “denied by [an] agency in writing” before a plaintiff can sue
under the FTCA), 2680 (listing substantive exceptions). That
leaves some victims of officers’ unconstitutional conduct with-
out compensation.
To illustrate how restrictive the FTCA can be, consider an
example. A federal prosecutor maliciously prosecutes a plain-
tiff, forcing him to defend against made-up charges. See
Thompson v. Clark, 142 S. Ct. 1332 (2022) (Fourth Amend-
ment protects against malicious prosecution). Can the plaintiff
sue for damages under the FTCA? Probably not. He can’t
bring a claim directly for the constitutional violation “because
constitutional claims are not cognizable under the FTCA.”
Harper v. Williford, 96 F.3d 1526, 1528 (D.C. Cir. 1996). And
even if he repackages his claim as a state-law suit, that avenue
isn’t available either. See 28 U.S.C. § 2680(h) (barring claims

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for most intentional torts, including “malicious prosecution”);
Moore v. United States, 213 F.3d 705, 710 (D.C. Cir. 2000).1
The upshot is that the FTCA leaves some plaintiffs with
no remedy — even plaintiffs who have been intentionally and
unconstitutionally harmed by federal officers. See Byrd v.
Lamb, 990 F.3d 879, 883 n.8 (5th Cir. 2021) (Willett, J., con-
curring) (“For victims” of excessive force, the FTCA “offers
no protection at all.”).
That gap was temporarily filled, in part, by Bivens
suits — damages actions implied under the Constitution. But
the modern Supreme Court has all-but removed that option.
Since 1980, the Court has refused to expand Bivens beyond
three narrow contexts. See Egbert v. Boule, 142 S. Ct. 1793,
1802 (2022) (describing those contexts); Maj. Op. 4-5 (same).
Over and over again, the Court has said judges should not ex-
tend Bivens when “there is any reason to think that Congress
might be better equipped to create a damages remedy.” Id. at
1803 (emphasis added).
1 True, the FTCA allows some intentional-tort claims to proceed
against “investigative or law enforcement officers.” 28 U.S.C.
§ 2680(h). But that exception is narrow. Only claims for “assault,
battery, false imprisonment, false arrest, abuse of process, or mali-
cious prosecution” are allowed. Id. And even then, the suit must be
against an “investigative or law enforcement officer,” excluding
many federal tortfeasors. See, e.g., Moore, 213 F.3d at 710 (prose-
cutors not covered); Wilson v. United States, 959 F.2d 12, 15 (2d Cir.
1992) (parole officers not covered); Solomon v. United States, 559
F.2d 309, 310 (5th Cir. 1977) (some security employees not cov-
ered); see also Pellegrino v. TSA, 937 F.3d 164, 170-81 (3d Cir.
2019) (allowing claim against TSA employees to proceed, but artic-
ulating a convoluted test).

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4
That may mean that we should never extend Bivens.
“[C]reating a cause of action is a legislative endeavor” that re-
quires “evaluat[ing] a range of policy considerations.” Id. at
1802 (cleaned up). So “in most every case,” Congress is “far
more competent” to decide whether to create a new cause of
action. Id. at 1803 (cleaned up); see also id. at 1810 (Gorsuch,
J., concurring).
Does that leave today’s Plaintiffs with no remedy for fed-
eral officers’ allegedly unconstitutional conduct? They say it
does. I’m not so sure. For most of our history, state tort suits
were the primary mechanism for holding federal officers ac-
countable. And an overlooked exception to the Westfall Act
may allow some of those suits to proceed today.
II. Remedies Against Federal Officers at the Founding
At the Founding, constitutional claims against federal of-
ficials were litigated in state tort suits. Hernandez v. Mesa, 140
S. Ct. 735, 751 (2020) (Thomas, J., concurring). In those suits,
“[t]he ultimate issue before the court concerned the federal
Constitution,” but the cause of action was supplied by state law.
Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J.
1425, 1506 (1987).
Those suits would proceed in three steps:
• Imagine a federal officer unlawfully searches a house.
To get damages, the owner would file a state-law tres-
pass suit against the officer.
• As a defense, the officer would argue that his actions
were authorized by a federal statute, a warrant, or a
command from a superior officer.

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5
• To defeat that defense, the owner would argue that
any purported federal authorization was unconstitu-
tional.2
Little v. Barreme is a good example. 6 U.S. (2 Cranch)
170 (1804). Following instructions from President Adams to
seize ships going to or coming from French ports, a U.S. Navy
captain captured a Danish ship. Id. at 176-78. The owner sued
in trespass. The Supreme Court held that the captain was liable
because the President’s instructions were not authorized by
statute. Id. at 179. Because the instructions were invalid, they
could not “legalize an act” that was otherwise “a plain tres-
pass.” Id.; see also Solcum v. Mayberry, 15 U.S. (2 Wheat) 1,
10 (1817) (“if the seizure be finally adjudged wrongful, and
without reasonable cause, [the victim] may proceed, at his elec-
tion, by a suit at common law . . . for damages for the illegal
act”).
The ratification debates suggest that the Framers thought
state tort suits would be an important check against federal mis-
conduct. In North Carolina, Archibald Maclaine said a citizen
“would have redress in the ordinary courts of common law”
after a federal “deput[y]” followed the President’s unlawful in-
structions and “distressed” the citizen. 4 Jonathan Elliot, The
Debates in the Several State Conventions on the Adoption of
the Federal Constitution, 47 (2d ed. 1836). And Richard
Dobbs Spaight agreed that “it was very certain and clear that,
2 See Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851); Wise v.
Withers, 7 U.S. (3 Cranch) 331 (1806); Wheeldin v. Wheeler, 373
U.S. 647, 652 (1963) (“When it comes to suits for damages for abuse
of power, federal officials are usually governed by local law. Federal
law, however, supplies the defense”); Alfred Hill, Constitutional
Remedies, 69 Colum. L. Rev. 1109, 1128-29 n.89 (1969) (collecting
cases).

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6
if any man [i]s injured by an officer of the United States, he
could get redress by a suit at law.” Id. at 36-37. Relying on
state causes of action to hold federal officers accountable put
an important structural check on federal power. State courts
would have a strong incentive to zealously enforce state law,
guarding against federal overreach.
Reflecting that approach, the First Congress understood
“that under the new federal system, litigants would . . . be able
to file common-law claims against federal officials for wrong-
doing in the course of their duties.” Jennifer Mascott, The Rat-
ifiers’ Theory of Officer Accountability, 29 (forthcoming),
https://perma.cc/AS4U-56WA. So when Congress passed the
First Judiciary Act, it required federal marshals to assume per-
sonal liability for the misdeeds of their deputies by posing
“sureties . . . in the sum of twenty thousand dollars,” while
leaving deputies’ liability to state law. Judiciary Act of 1789,
§ 27, 1 Stat. 73, 87.
Using tort suits to hold executive officers accountable was
a model borrowed from England. In two famous unlawful-
search cases, the English courts held Crown officials liable for
trespass, awarding the plaintiffs damages. Wilkes v. Wood
(1763) 98 Eng. Rep. 489; Entick v. Carrington (1765) 95 Eng.
Rep. 807. Those cases are important today because they “pro-
foundly influenced” the drafting of the Fourth Amendment.
City of West Covina v. Perkins, 525 U.S. 234, 247 (1999)
(Thomas, J., concurring).
That background may explain why the Bill of Rights did
not contain an express cause of action. The Framers likely ex-
pected our newly guaranteed rights to be secured by old com-
mon-law actions. Federal officers would not be above the law
because they would be subject to the same common law as pri-
vate citizens. Amar, supra at 1507 (the Bill of Rights

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7
presupposed “a general backdrop of private law” causes of ac-
tion to vindicate “primary rights of personal property and bod-
ily liberty”).3
III. The Westfall Act’s Constitutional-Tort Exception
If federal officers had been above the law at the Founding,
the new rights won at Yorktown and guaranteed by the Bill of
Rights would have been significantly declawed. For that rea-
son, some judges and scholars have said prohibiting all dam-
ages actions against federal officers might be a constitutional
problem today.4 But those concerns may be premature. It’s
3 It’s not surprising that the Constitution silently assumed the avail-
ability of state common-law actions. The Framers also assumed the
continued existence of other long-standing features of the legal land-
scape. Take sovereign immunity. Until the Eleventh Amendment,
the Constitution didn’t say a word about it. But state immunity from
suit was part of the “plan of the Convention” — that is, implicit in
“the structure of the original Constitution itself.” PennEast Pipeline
Co. v. New Jersey, 141 S. Ct. 2244, 2258 (2021) (cleaned up). The
same is probably true of state tort actions against federal officers.
4 See, e.g., Byrd v. Lamb, 990 F.3d 879, 883-84 (5th Cir. 2021) (Wil-
lett, J., concurring) (it would raise “serious constitutional concerns”
to “slam[ ] shut” the “courthouse doors” on “victims of unconstitu-
tional conduct”); Brief of Professor Jennifer L. Mascott as Amicus
Curiae in Support of Petitioner at 28-29, Egbert v. Boule, 142 S. Ct.
1793 (2022) (noting but not endorsing the view that “some remedy”
might be “constitutionally necessary to address government official
actions taken without any lawful scope of authority”); William
Baude, Bivens Liability and Its Alternatives, Summary, Judgment
(Feb. 27, 2020) (“It does seem perverse to think that Congress can
eliminate state law damages for constitutional violations without ei-
ther Congress or the courts providing an alternative.”),
https://perma.cc/BL77-3JSU. I take no position on whether those
scholars and judges are correct that removing all damages remedies
against federal officers would violate the Constitution.

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8
possible that a careful reading of the Westfall Act avoids any
constitutional problem by preserving state tort suits against fed-
eral officers for constitutional violations.
Recall that the Westfall Act generally prohibits tort vic-
tims from bringing state tort suits against federal officers, forc-
ing victims instead to pursue the limited remedies in the FTCA.
28 U.S.C. § 2679(b)(1). But the Westfall Act does not preclude
“a civil action . . . brought for a violation of the Constitution of
the United States.” Id. at (b)(2)(A). Though overlooked, that
exception may allow state tort suits “brought for” constitutional
violations to proceed.
On a broad reading of the exception, a suit might count as
“brought for a violation of the Constitution” if its purpose is to
remedy a constitutional violation. For instance, a state trespass
suit could proceed if its goal was to remedy an unconstitutional
search. That interpretation arguably tracks the ordinary mean-
ing of the phrase “brought for.” Courts have long used it to
describe the goal of a suit, not the cause of action. See, e.g.,
Escanaba & Lake Michigan Transportation Co. v. City of Chi-
cago, 107 U.S. 678, 684 (1883) (describing a suit as “brought
for damages”); see also Carlos M. Vázquez & Stephen I. Vla-
deck, State Law, the Westfall Act, and the Nature of the Bivens
Question, 161 U. Pa. L. Rev. 509, 570-77 (2013) (proposing a
similar interpretation).
Even if that reading is too broad, the exception may still
allow some suits to proceed. On a narrower reading, a suit
might count as “brought for a violation of the Constitution” if
a constitutional violation is part of the plaintiff’s cause of ac-
tion. Though that reading would preclude most state tort
suits — a constitutional violation is not part of a trespass ac-
tion, for example — some suits might still fit the bill. In many
states plaintiffs can file an “action on the statute,” alleging a

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9
“cause of action in tort resulting from activity in violation of a
legislatively created duty or standard.” Vázquez & Vladeck,
supra at 538-39 (cleaned up). A plaintiff might use that cause
of action to allege that a federal officer violated the Constitu-
tion. And if current state laws do not meet the exception, noth-
ing would stop a state from creating a new cause of action al-
lowing plaintiffs to directly allege federal constitutional viola-
tions. See Akhil Reed Amar, Using State Law to Protect Fed-
eral Constitutional Rights: Some Questions and Answers About
Converse-1983, 64 U. Colo. L. Rev. 159, 160 (1993); see also
Thomas Koenig & Christopher D. Moore, Of State Remedies
and Federal Rights, 36 (forthcoming), https://perma.cc/6LH6-
6TM2 (“the text of the Westfall Act counsels in favor of read-
ing” the constitutional-tort exception “to extend to state civil
actions brought for federal constitutional violations”).
True, until now, the Westfall Act’s constitutional-tort ex-
ception has been read more narrowly than that. The Supreme
Court has said the exception “simply left Bivens where it found
it,” ensuring that Bivens actions weren’t precluded by the West-
fall Act. Hernandez v. Mesa, 140 S. Ct. 735, 748 n.9 (2020).
But that does not foreclose the possibility that the Act could
also let some state tort suits proceed.5
5 Minneci v. Pollard might be read to go further. 565 U.S. 118, 126
(2012). It explained that there was a need for a Bivens remedy
against federal prison guards, but no need for one against private
guards operating a federal prison. That’s because state tort actions
are generally available “against employees of a private firm,” but are
generally barred by the FTCA “against employees of the Federal
Government.” Id.
Some have read that statement to foreclose interpreting the West-
fall Act to allow state tort suits. James E. Pfander & David P.
Baltmanis, W(h)ither Bivens?, 161 U. Pa. L. Rev. Online 231, 243
(2013). But that may read Pollard for more than it’s worth. For one

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10
Plus, reading the exception as a good-for-Bivens-only rule
is in tension with the statutory text and context. From the
Founding until the 1970s, state suits were the primary regime
for holding federal officers accountable for constitutional vio-
lations.6 So we might expect exceptionally clear language if
Congress had wanted to abrogate that regime. Instead, we find
statutory text tailored to preserve it: The Act does not cover
suits “brought for a violation of the Constitution.” 28 U.S.C.
§ 2679(b)(2)(A); see also Meshal v. Higgenbotham, 804 F.3d
417, 428 (D.C. Cir. 2015) (noting that Congress tried to ensure
the Westfall Act would not leave victims of constitutional torts
remediless). If Congress had meant to limit that exception to
Bivens suits, it might have said “suits arising under the Consti-
tution,” not suits “brought for” constitutional violations. See
Davis v. Passman, 442 U.S. 228, 229-30 (1979) (describing
Bivens suits as “aris[ing] under the Constitution”).
Finally, the Westfall Act’s historical context provides no
clear evidence that Congress wished to upset the long tradition
thing, the Court’s fleeting remark about the Westfall Act gave little
attention to its text. For another, in at least one post-Westfall-Act
case, the Court reached a different conclusion. In Wilkie v. Robbins,
the Court suggested that a tort victim didn’t need a Bivens remedy
because under state law he “had a civil remedy in damages for tres-
pass” against offending federal officials. 551 U.S. 537, 551 (2007).
For that statement to be correct, the Westfall Act must not preclude
state tort suits brought for constitutional violations.
6 For proof that state tort suits were used to remedy constitutional
violations until the 1970s, look no further than the Solicitor Gen-
eral’s Brief in Bivens. There, the government assured the Court that
there was no need to create a new federal remedy for Fourth Amend-
ment violations, because “a body of state law” already provided
“substantial recovery.” Brief for the United States at 38, Bivens v.
Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

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11
of using state tort actions to police constitutional violations.
The Act abrogated Westfall v. Erwin, 484 U.S. 292, 297-98
(1988). There, the Supreme Court refused to grant federal em-
ployees’ absolute immunity from state tort suits. Because that
decision “eroded the common law tort immunity previously
available to Federal employees,” Congress passed the Westfall
Act to funnel future tort claims through the FTCA. Westfall
Act, Pub. L. No. 100-694, § 2(a)(4), 102 Stat. 4563 (1988). But
Westfall did not concern a suit brought for a constitutional vio-
lation. And Congress enacted an express exception to carve
out such suits.
* * *
I’m not certain whether the Westfall Act is best read to
allow state tort suits for constitutional injuries. But that reading
finds support in the text of the statute, accords with Founding-
era principles of officer accountability, and closes a remedial
gap — ensuring relief for those injured by federal officers’ un-
constitutional conduct. For those reasons, I hope the Act gets
close attention in an appropriate case.
If the Westfall Act does not preclude state tort suits against
federal officers for constitutional violations, the protesters in
this case may yet seek a remedy. They allege that federal of-
ficers violated the Fourth Amendment by using “excessive
force” against them. JA 173. DC law provides a cause of ac-
tion for tortious assault and battery. See District of Columbia
v. Chinn, 839 A.2d 701, 705 (D.C. 2003). The protesters could
thus file a tort action, claiming assault and battery, to recover
damages for the alleged Fourth Amendment violation.
But the protesters did not file those claims in this case.
And I agree with the Court that their Bivens claims fail.

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