A major loophole in constitutional law leaves this plaintiff without a remedy

This case exposes a major loophole in constitutional law. That loophole means that the plaintiff, who accuses federal agents of false arrest, malicious prosecution, and the fabrication of evidence, cannot maintain her lawsuit, and it was dismissed prior to trial.

The case is Sigalovskaya, v. Braden, issued on August 27. Plaintiff alleges that federal agents working for Department of Homeland Security conducted a warrantless entry and searched her home and falsely claimed she confessed to taking pornographic photos of her child. This resulted in plaintiff's arrest and the temporary loss of guardianship of her two children, as well as placement on the sex offender registry. If the allegations are true, this is a terrible thing. However, this is a Bivens action, not a case brought under Section 1983, which permits such lawsuits against state and local police. Since there is no federal counterpart to Section 1983, she pled this case under Bivens, a Supreme Court ruling from 1971 that said the Constitution provides for claims against federal officials who violate constitutional rights, but only in limited circumstances. On the eve of trial, after the Supreme Court issued Egbert v. Boule, 596 U.S. 482 (2022), which further scaled back the Bivens remedy, the district court dismissed the case in its entirety. The Court of Appeals affirms in an unsigned ruling that has three separate opinions.

The Supreme Court has allowed few claims under Bivens -- those involving search and seizure, due process , and employment discrimination. In nearly a dozen other cases, the Supreme Court has turned away other Bivens claims, holding that plaintiffs must satisfy a significant hurdle: if the case is meaningfully different from the claims already permitted under Supreme Court jurisprudence, then the court considers whether "special factors" indicate that the judiciary is less equipped than Congress to provide a remedy for the injured party. In other words, if the Court thinks Congress is better suited to deal with this, then there is no Bivens remedy. 

The problem for plaintiff is that while search and seizure claims are permitted under Bivens, this case involves a fabrication of evidence claim, the primary focus of this lawsuit. Judge Perez says this in her concurrence. Other Circuit courts have already held that fabrication claims are not permissible under Bivens, making this a "new context case." In a new context case, we ask whether there are any other avenues for relief beyond a lawsuit. Judge Lee notes there is an internal, administrative remedy available for violations like this, though that avenue for relief will not be the same as a lawsuit. That is enough to bring this case out of Bivens for good. Judge Perez also writes a concurrence, noting also that the Department of Homeland Security has a mechanism in place to handle grievances like this. Again, that will never be comparable to a full-blown lawsuit, but the Supreme Court says that is enough under Bivens to remove this case from the limited Bivens universe.

Judge Lynch dissents in part, agreeing that the malicious prosecution claim is barred under the Supreme Court's Bivens case law but also stating that Bivens allows plaintiff to sue for false arrest. He goes on to summarize the quandary created by the Supreme Court on Bivens, noting that four Justices have recognized that the Bivens "charade is untenable" in that some claims are permitted and others are not based on an incomprehensible legal standard. Judge Lynch states that the lower federal courts are doing the best they can on this issue in trying to comply with Supreme Court rules even though the Court "has not offered a coherent, intellectually honest basis for reflexively distinguishing case that are 'materially distinguishable' from Bivens itself." These are strong words.

The limited remedy under Bivens is one of the great loopholes in the American legal system. Section 1983 permits a plethora of civil rights lawsuits against state and local officials, but there is no federal counterpart to Section 1983, which is why the Supreme Court created Bivens in the first place. It would be easy for Congress to remedy this omission, but that will not happen in this political climate, and Congress has had 54 years to fix this. It has not. When you consider how the President is threatening to bring federal troops into American cities, any civil rights violations flowing from that maneuver may not have any court remedies under the line of cases that have narrowed the Bivens doctrine.