K.o., by and Through Their Parents and Next Friends , E.o. and L.j. v. Jefferson B. Sessions , Iii, Former Attorney General of the United States

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed July 29, 2022
No. 20-5255
K.O., BY AND THROUGH THEIR PARENTS AND NEXT FRIENDS ,
E.O. AND L.J., ET AL.,
APPELLANTS
v.
J EFFERSON B. S ESSIONS , III, FORMER ATTORNEY G ENERAL OF
THE UNITED S TATES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-00309)
S ILBERMAN, Senior Circuit Judge, concurring: I agree
with the majority’s holding, but I would include as a reason to
deny a Bivens action that the plaintiffs in this case had an
alternative remedy for damages under the Federal Tort Claims
Act (“FTCA”). Indeed, they are pursuing such an action which
makes their appeal for a Bivens action seem wholly
superfluous.
To be sure, Appellants rely on Carlson, which held that
Bivens actions, at least in that context, were not supplanted by
a tort action authorized by the FTCA. Carlson v. Green, 466

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U.S. 14, 19–23 (1980). But I don’t think that aspect of Carlson
is any longer good law. See Hernandez v. Mesa, 140 S. Ct.
735, 748 n. 9 (2020). Carlson is limited to its facts—its
reasoning doesn’t survive. The majority ignores this point.
Expanding Bivens remedies is now a “‘disfavored’ judicial
activity.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)
(internal citation omitted). The Supreme Court has effectively
made clear that the only occasions in which a damages remedy
can be implied for a constitutional violation are those with the
exact kind of facts that gave rise to three Bivens cases. Bivens
v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971);
Davis v. Passman, 442 U.S. 288 (1979); Carlson v. Green, 466
U.S. 14 (1980).
In theory—but only in theory—a court could imply a
Bivens remedy in a “new context” (beyond the facts in Bivens,
Passman, or Carlson), if there are no “special factors
counseling hesitation.” Hernandez, 140 S. Ct. at 743 (cleaned
up). But one of the more obvious “special factors” in a new
case is whether Congress has authorized any remedy for a
particular alleged injury. Egbert v. Boule, 142 S. Ct. 1793,
1804 (2022).
That can include an injunctive remedy or even an APA
claim. See Ziglar, 137 S. Ct. at 1862; Egbert, 142 S. Ct. at
1806. With that in mind, it seems obvious to me that a
coinciding damages remedy authorized by the FTCA is a
fortiori a special factor precluding a Bivens remedy and
therefore that part of Carlson’s language should be ignored.
This seems especially clear since courts are not supposed to
supplement Congress’s remedial structure with a Bivens claim
simply because, in the courts’ view, Congress did not do
enough. Egbert, 142 S. Ct. at 1807.

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Be that as it may, although the Court has announced that
special factors should cause hesitation before extending a
Bivens remedy to a new context, the truth of the matter is it has
simply red-circled—to use a labor relations term—three Bivens
cases. Those cases are limited to virtually the same factual
situations.
To take a step back, in the en banc case, Crawford-El v.
Britton, 93 F.3d 813, 832 (D.C. Cir. 1996) (Silberman, J.,
concurring) some years ago I urged the Supreme Court to
overrule Bivens and reiterated the point in Tah v. Global
Witness Publishing, Inc., 991 F.3d 231, 252 (D.C. Cir. 2021)
(Silberman, J., dissenting in part). It is in my view another
egregious example of the Supreme Court of the United States
acting like a common law court rather than an Article III court.1
In that respect it is similar to Roe v. Wade or New York Times
v. Sullivan. The Court has gone partway in the direction I
urged.
The Clerk is directed to publish my concurring statement.
1 Justices who have seen themselves as common law judges have
come from both political parties.

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