BIVENS AVAILABILITY CHECKER

User Guide

1. Data Input: input your data, as follows:
   1. New Bivens Context: select either 'YES' or 'NO'
      • 'NO' means that your case is not a new type of Bivens case
        • (ie, it closely matches one of the three previously accepted Bivens cases)
      • 'YES' means that your case does not closely match any of the three previously-accepted Bivens cases (see below)
   2. Adequate Legal Alternatives: select either 'YES' or 'NO'
      • 'YES' means that the legal system has provided a different method for you to use in order to recover damages from the constitutional violations that have afflicted you
      • 'NO' means that the legal system does not have any other way for you to recover damages from the constitutional violations that have afflicted you
   3. Special Factors Involved: select either 'YES' or 'NO'
      • 'YES' means that the legal system believes that there are special factors that can be used to prevent you from proceeding with your Bivens action
      • 'NO' means that the legal system does not believe that there are any special factors that can be used to prevent you from proceeding with your Bivens action
2. Recommended Usage: you'll probably get the best user-experience if you use Google Chrome.
3. JavaScript: this checker tool will only work if you have JavaScript enabled (which you probably do - it's the default for most modern browsers).
4. Shortcuts: these keyboard shortcuts will run the checker:
   • {ENTER} will run the checker (if you're inside a user input field).
   • ALT+C will also run the calculation (from anywhere).

Evaluation Info

• "Two-Step Inquiry": This evaluation technique is commonly referred to as a "Two-Step Inquiry"
  • Step 1: The Court asks, "has this type of complaint been grandfathered in?"
    • If "yes" then let litigant litigate
    • If "no" then goto Step 2
  • Step 2: The Court asks, "can somebody else deal with this complaint?"
    • If "yes" then dismiss litigant's case
    • If "no" then do some more thinking (see "The Hidden Third Step")
• The Hidden Third Step: Even if the Court answers 'NO' to the first two questions (in the "Two-Step Inquiry"), the Court will still ask a third question
  • Step 3: The Court asks, "is there something special about this case that can allow me to dismiss it?"
    • If "yes" then dismiss litigant's case
    • If "no" then let litigant litigate
• Cheat Sheet: here are the two answer-sequences that will yield a successful Bivens availability:
  • NO (ie, grandfathered in)
  • YES-NO-NO (ie, new Bivens context that the Courts must examine)
• Sources: TBD developed this checker tool after reading certain appellate opinions (all of which have been cited herein)
  • TBD found the Ziglar v. Abbasi opinion to be the most informative

Notes

• The Only 3 Cases that the US Supreme Court has ever extended Bivens to are:
  • Bivens v. Six Unknown Agents, 403 US 388 (1971)
  • Carlson v. Green, 446 US 14 (1980)
  • Davis v. Passman, 442 US 228 (1979)
• Determining 'Newness' of Complaint: The federal courts consider the following things when determining whether a case presents a "New Bivens Context"
  • Is this a "new category of defendants"?
  • Is this a "significantly different kind of constitutional harm"?
  • What is the "rank of the officers involved"?
  • What is the "constitutional right at issue"?
  • What is the "generality or specificity of the individual action"?
  • What is the "the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted"?
  • What was the "statutory or other legal mandate under which the officer was operating"
  • What is the "risk of disruptive intrusion by the Judiciary into the functioning of other branches"?
• "Special Factors" Definition: "This Court has not defined the phrase "special factors counselling hesitation." The necessary inference, though, is that the inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Thus, to be a "special factor counselling hesitation," a factor must cause a court to hesitate before answering that question in the affirmative."
  - see Ziglar v. Abbasi, 137, S. Ct. 1843 (2017)
  
• Individual Capacity vs Official Capacity: "While a plaintiff may bring a Bivens action against a federal officer in his individual capacity, a plaintiff may not bring a Bivens action against a federal agency or a federal officer acting in his official capacity."
  
  "..."
  
  "Bivens permits suits only against federal agents in their individual capacities." - see Horne v. SSA, 359 Fed. App'x 138 (11th Cir. 2010)
  
• Bottom Line: This "Two-Step" (ie, Three-Step) Inquiry boils down to whether the federal courts think they should be handling a case like yours: "While our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy."
  - see Ziglar v. Abbasi, 137, S. Ct. 1843 (2017)
  

TBD's Commentary

• Blind Eye: Based on recent Supreme Court decisions (ie, Egbert v. Boule, 142 S. Ct. 1793 (2022), Bivens is just about dead.
  • Thus, if a federal official/agency violates your constitutional rights - and you ask the Courts for a remedy (under Bivens) - the judiciary will look the other way
• Dry Spell: the federal courts haven't expanded Bivens since the early 1980s (40+ years ago).
  • So, you should remain vigilant when recovering damages inflicted upon you by civil rights violations.
    • vigilance against your civil opponent; and
    • vigilance against the agencies/actors who've sworn to [supposedly] uphold your rights. (also see 42 USC §1983)
• Spoiler Alert: In TBD's opinion, the federal courts will look for any excuse to dismiss your Bivens lawsuit (please see "The Hidden Third Step" from above).

IMPORTANT DISCLAIMER

• This Is Not Legal Advice!
• This Tool Was Not Created By A Lawyer!
• The Above Commentary Was Not Written By A Lawyer!
• This Is Not Legal Advice!
• Please see TBD's list of Civil Rights Attorneys
  • (unique, free, fast, no-strings-attached)
  • (statistical profiles, contact info, etc.)