Fifth Circuit Declines to Extend Bivens to Fourth Amendment Claims Against VA Officers
Recently, the Court of Appeals for the Fifth Circuit declined to extend Bivens to violations of the Fourth Amendment for excessive force and unreasonable seizure brought against Department of Veterans Affairs police officers.
On February 16, 2016, Jose Oliva attempted to enter a Department of Veterans Affairs (VA) hospital in El Paso, TX. While in line to use the metal detector, Oliva and VA Officer Nivar engaged in a discussion that quickly escalated into physical altercation. Ultimately, that altercation stopped when three VA police officers, Officer Nivar, Officer Barahona, and Officer Garcia, wrestled Oliva to the ground, placed him in a chokehold, and arrested him. After the altercation, Oliva sought medical treatment. He had two shoulder surgeries and received treatment for post-traumatic stress disorder.
Oliva exhausted VA’s administrative processes, then brought suit against the VA police for violations of the Fourth Amendment under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). He also brought claims against the United States under the Federal Tort Claims Act (FTCA).
Oliva’s and the VA police’s version of events differed. According to Oliva’s affidavit, he placed all his personal belongings into an inspection bin, VA Officer Nivar asked for identification, Oliva explained it was in the inspection bin, went through the metal detector, and was attacked without provocation by three VA police officers (Officer Nivar, Officer Barahona, and Officer Garcia). The VA police officers submitted materially identical affidavits. All said Oliva attempted to enter the hospital without clearing security, and that he did not clear security because he did not show identification.
The events were also captured by security cameras. The court stated that the video is inconsistent with Oliva’s version of events, as among other things, Oliva was still holding something when he went through the detector, and that Officer Nivar approached Oliva with handcuffs before he went through the detector.
Concerning Oliva’s Fourth Amendment claim, the district court found that this case did not present a new Bivens context. The district court found that this case was like Bivens because both involved excessive force and unreasonable seizure claims. The district court therefore held that Oliva had the right to recover damages under Bivens so long as his claims were not barred by qualified immunity. At summary judgment, the district court found that Oliva’s claims against the officers were not barred by qualified immunity. The officers appealed this case to the Court of Appeals for the Fifth Circuit.
The Fifth Circuit stated that courts confronted with Bivens claims must ask two questions – whether the claims fall into one of the three existing Bivens actions, and if not, whether the court should recognize a new Bivens action. The three Bivens cases involve: “(1) manacling the plaintiff in front of his family in his home and strip-searching him in violation of the Fourth Amendment,” “(2) discrimination on the basis of sex by a congressman against a staff person in violation of the Fifth Amendment,” and “(3) failure to provide medical attention to an asthmatic prisoner in federal custody in violation of the Eighth Amendment.” Per the court, virtually everything else is a “new context.”
The court of appeals described the district court’s finding that the VA police officers violated Oliva’s right to be free of excessive force as “true but irrelevant.” The court of appeals noted that “Courts do not define a Bivens cause of action at the level of ‘the Fourth Amendment.’” The court then described the relevant question to be whether this case is different in a meaningful way from previous Bivens cases.
Here, the court found the case to differ from Bivens in several meaningful ways. The case arose in a government hospital, not a private home. The VA police were manning a metal detector, not making a warrantless search. The dispute that gave rise to Oliva’s altercation involved the hospital’s identification policy, not a narcotics investigation. The court therefore found the context to be new.
The court of appeals next looked at whether it would engage in the “disfavored judicial activity” of recognizing a new Bivens context. The court explained that there are special factors against extending Bivens.
Here, Congress has provided an alternative remedial structure – through the VA’s administrative process. Oliva followed that process by filing an administrative complaint with the VA, which the VA denied. He then sued the United States under the FTCA. Oliva’s own actions therefore show that there are alternative remedial schemes. Also, the court explained that it must consider “what Congress has done and what Congress has left undone.” While Congress waived the United States’ sovereign immunity to some claims under the FTCA, it did not make individual officers statutorily liable for excessive force claims.
As a result of these special factors, the Fifth Circuit declined to extend Bivens to the new context of this case. The court of appeals reversed and remanded to the district court with instructions to dismiss the claims against the VA police officers.
Read the full case: Oliva v. Nivar
This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.