Court security officer cannot bring a Bivens claim

Civil rights cases against the federal government are harder to win than cases against state and local governments. The reason for this is while the Supreme Court said in the Bivins case in 1971 that you can sue the federal government for certain constitutional claims, the Court has actually recognized only a handful of ways you can bring these cases.

The case is Atterbury v. United States Marshalls Service, decided on November 3. Plaintiff was a court security officer in Rochester who went home sick one day after telling a senior employee that he wasn't feeling well. Under the rules, you have to get clearance from a supervisor to go home early. Plaintiff was ultimately fired over this, and she sues the government under the Due Process Clause.

When we think about constitutional lawsuits, Section 1983 comes to mind, shorthand for 42 U.S.C. §  1983. But Section 1983 only applies to the states. The Supreme Court said in Bivens that you can bring some constitutional claims against the federal government. But here is the legal test governing the courts will identify a new right under Bivens.

The analysis of whether to extend Bivens to a new context proceeds in two steps. First, a court must determine “whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Second, even in the absence of such an alternative process, a court “must make the kind of remedial determination that is appropriate for a common‐law tribunal, paying particular heed, however, to any special factors counseling hesitation before authorizing a new kind of federal litigation.”

In other words, don't count on it, especially if there is another way the plaintiff can recover some relief, even if it is not all the relief he might otherwise recover. There is no Bivens claim here. Factors counseling hesitation against identifying a new right include the fact that Congress enacted the Contract Disputes Act of 1978, which provides final resolution of all disputes arising from government contracts. While plaintiff would not be able to sue under this Act, that does not mean he can sue the government under Bivens. In passing the Act, Congress declined to provide a remedy for subcontractors or employees of subcontractors. This makes the court gun-shy about giving plaintiff a remedy in this case; to do otherwise would step on the shoes of Congress.

Plaintiff also cannot sue the government for constitutional violations under Bivens because he has a potential claim under the Administrative Procedure Act, which “permits a party to bring an equitable claim challenging arbitrary and capricious action of an administrative agency in federal district court and waives the government’s sovereign immunity with respect to such claims in that forum.” The Second Circuit "leave[s] it to the district court to determine, in the first instance, whether Atterbury has properly alleged that USMS acted arbitrarily and capriciously, or in a manner 'contrary to constitutional right, power, privilege, or immunity,' 5 U.S.C. § 706(2)(A), (B), in removing him from the Court Security Program."