Civil Rights: Court wrongly refused to dismiss suit against fugitive task force officers

Where a woman sued members of a fugitive task force for injuries suffered when a canine bit her leg during execution of an arrest warrant, the district court erred when it found the suit was similar enough to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

Background

Evy Orellana suffered serious injuries when a tactical canine bit her leg as a fugitive task force executed an arrest warrant for her boyfriend. She brought an action against the officers under Bivens, claiming that they had violated her Fourth Amendment rights with an unreasonable search and seizure.

The officers moved to dismiss the claims, arguing that Bivens was unavailable in this situation. The district court denied the motion, reasoning that the case was similar enough to Bivens that its cause of action should apply. The officers now take an interlocutory appeal, arguing that the district court’s qualified-immunity and Bivens decisions were independent errors.

Jurisdiction

Under the collateral order doctrine, this court treats some non-final orders as though they are final enough to create appellate jurisdiction. Appeals from the denial of a qualified immunity defense fall within the collateral order doctrine. And appellate jurisdiction to review the officers’ qualified immunity also provides appellate jurisdiction to review whether Bivens creates the cause of action to which the officers assert that immunity. This court thus has jurisdiction over the Bivens question.

Bivens

The cause of action first created in Bivens continues to cover three narrow domains. First, in Bivens itself, the Supreme Court created an implied cause of action under the Fourth Amendment to recover damages suffered as the result of a warrantless search and seizure. Second, Davis v. Passman extended Bivens to a congressional staffer fired because of her sex in violation of the Fifth Amendment. Last, Carlson v. Green extended Bivens to allow a federal prisoner’s estate to bring an Eighth Amendment claim for deficient care.

“For the past 45 years, [the Supreme] Court has consistently declined to extend Bivens to new contexts.” In the meantime, it “has made clear” to the inferior courts “that expanding the Bivens remedy to a new context is an ‘extraordinary act’ that will be unavailable ‘in most every case.’”

Under this precedent, the court conducts “a highly restrictive two-step analysis” to decide whether a Bivens cause of action exists. At step one, it asks whether the case “arises in a ‘new context’ or involves a ‘new category of defendants.’” But if the case differs from the Bivens trio in any of these respects, the court proceeds to a second step, and asks whether any special factors counsel against extending Bivens.

Analysis

Unlike Bivens, this case involves a different statutory scheme: U.S. Marshals working in a fugitive task force including federal, state and local agents. And the task force acted under the authority of a warrant. So allowing a Bivens remedy here would expand it into a new context.

And although not every new defendant will make for a new context, this case involves a different “statutory or other legal mandate under which the officer was operating.” Here, the Service operated under its congressional mandate to coordinate federal, state and local law enforcement agencies chosen by the Attorney General to form joint fugitive task forces for the purpose of “locating and apprehending fugitives.”

These joint task forces gives two more reasons to pause. First, they operate under narrow, specialized mandates. Second, these task forces raise federalism concerns that ordinary federal law-enforcement does not. This court joins other circuits in holding that these joint task forces are new Bivens contexts.

Another reason to treat this case as a new Bivens context is that the officers acted under a warrant. Under this court’s precedents, that warrant means Orellana’s case involves a different right—and different policy implications—than Bivens. The district court thus erred when it determined that this case fell within the original Bivens cause of action.

Turning to step two, extending Bivens could interfere with the relationship between the Marshals Service and its state and local partners by exposing individual officers to potential loss. This risk of liability may also affect the way officers do their jobs.

Reversed.

Dissenting opinion

Gregory, J., dissenting:

The “distinctions” highlighted by the majority are insufficient to overcome the factors that heavily weigh in favor of finding there is no meaningful difference between the context of Bivens and that of this case. As such, Orellana should be permitted to move forward with her Bivens claim. Therefore, I dissent.

Orellana v. Godec, Case No. 23-2224, July 30, 2025. 4th Cir. (Richardson), from DMD at Greenbelt (Chuang). Dana Lydia Kaersvang for Appellants. Timothy Francis Maloney for Appellee. VLW 025-2-294. 20 pp.