RLUIPA personal liability and Bivens on the brink

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The end of the Supreme Court’s term is in sight – the court is down to its last undecided merits cases and its last regularly scheduled conference will be held next week. While there is usually one impromptu mop-up conference after that to resolve all the unfinished cert-stage business, we’re close to the end. And the court is doing its part by clearing out all the unresolved relists before the term draws to a close. This week, the court cleared out two returning relists by granting review for next term. We had eight-time relist First Choice Women’s Resource Centers, Inc. v. Platkin, previewed here, involving whether a group of faith-based pregnancy centers can go to federal court to resolve their claim that their First Amendment rights were chilled by a state’s civil investigative demand into their fundraising practices, or rather if they must address their claim through ongoing state proceedings. I suspect that one of the justices was writing an opinion dissenting from denial of cert and it was persuasive enough to dislodge enough votes to grant review. And the court also granted review in two-time relist Chevron USA Inc. v. Plaquemines Parish, Louisiana, previewed here, addressing whether state-court suits Louisiana parishes brought against oil companies for coastal restoration belong in federal court because some of the damage from oil exploration was done at the request of federal officials during World War II. With those cases cleared out, now just two returning relists remain.

There are 124 petitions and applications on for this week’s Supreme Court conference. Three of them are brand-new relists. 

Individual liability under RLUIPA

I spoiled the surprise a bit for two of this week’s new relists, because the issue seems like a likely enough candidate for review that I previewed it last week even before any relists. Landor v. Louisiana Department of Corrections and Public Safety, the focus of last week’s preview, involves a religiously observant Rastafarian whose head was shaved by prison officials, and asks the justices to consider whether he can sue prison officials in their individual capacity under the Religious Land Use and Institutionalized Persons Act. Lousiana claims he can’t because Congress enacted RLUIPA under its spending clause authority, and such enactments are tantamount to contracts and thus are only binding on the states that receive federal funds but not on their employees. That case is joined by Tripathy v. McKoy, brought by the same lawyers and presenting the same issue. Sanjay Tripathy was wrongfully convicted of sexual abuse and while incarcerated, he was ineligible for a sentence reduction because he refused to “accept responsibility for his sexually offending behavior.” Tripathy says that burdened his religious belief because it violated Hindu religious tenets against lying. Counsel for both cases propose Landor to be the lead case. Tripathy is to be held as a backup if the court decides Landor is not a suitable vehicle.  These cases seem like likely grants after the federal government weighed in supporting review.

Goodbye to Bivens?

The Supreme Court is once again confronting what is to be done with Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which recognized an implied right of action in federal court to remedy federal officers’ violations of Fourth Amendment rights, even though Congress had not established a cause of action. Since 1980, the court has refused to extend Bivens beyond the three cases in which the Supreme Court has permitted suits to proceed, and recent decisions like Egbert v. Boule have all but slammed the door shut, emphasizing that Congress, not courts, should create new causes of action. Goldey v. Fields asks whether federal prisoners can sue prison officials for excessive force under the Eighth Amendment via an implied cause of action under Bivens. 

Andrew Fields, an inmate at a federal prison in Virginia, alleges a brutal series of assaults by prison officers – punches, kicks, and head-ramming with a security shield – followed by a deliberate denial of access to the Bureau of Prisons’ Administrative Remedy Program. The district court had dismissed Fields’ claims, finding no Bivens remedy for excessive force. But the U.S. Court of Appeals for the 4th Circuit reversed, in a split decision, and extended Bivens to this “rare” scenario, emphasizing the egregious nature of the abuse and the intentional thwarting of administrative remedies. The decision sparked a dissent from Judge Julius Richardson, who argued the decision flouted Supreme Court precedents refusing to extend Bivens to new contexts and invited a flood of prisoner litigation. 

Petitioners – prison officials facing personal liability – now urge the court to grant certiorari to address a claimed circuit split and to “reconsider[] Bivens” to “avoid[] future litigation over incessant attempts to expand it.” The Office of the Solicitor General has taken the very unusual step of filing a cert-stage amicus brief without even being asked by the court. The government takes a different tack than the prison officials, arguing the court has already made it sufficiently clear where it stands with Bivens that the court should simply summarily reverse. Fields, on the other hand, argues that this case is too “narrow” and “rare” to be important enough for the court to take up. 

This case is catnip for a court increasingly skeptical of Bivens’ judicially crafted remedies. The 4th Circuit’s ruling has been called “a far-afield outlier” by the U.S. Court of Appeals for the 11th Circuit in Johnson v. Terry, which also predicts that the decision will be the one to “finally render[] Bivens cases extinct.” With Goldey noting that two district courts have already relied on Fields to sustain similar claims, the court may see this as a necessary chance to clarify – or bury – Bivens once and for all. This case thus seems likely to receive significant attention.

That’s all for this week. Tune in next week to find out what other cases may be granted before the summer recess.

New Relists

Landor v. Louisiana Department of Corrections and Public Safety, 23-1197

Issue: Whether an individual may sue a government official in his individual capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act of 2000. CVSG: 5/7/2025

(Relisted after the June 12 conference.)

Tripathy v. McKoy, 24-229

Issue: Whether an individual may sue a government official in his individual capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act of 2000.

(Relisted after the June 12 conference.)

Goldey v. Fields, 24-809

Issue: (1) Whether an implied cause of action exists for Eighth Amendment excessive-force claims; and (2) whether the court should reconsider the premise that the judiciary may imply causes of action for damages under the federal Constitution that Congress did not enact.

(Relisted after the June 12 conference.)

Returning Relists

GHP Management Corp v. City of Los Angeles, California, 24-435

Issue: Whether an eviction moratorium depriving property owners of the fundamental right to exclude nonpaying tenants effects a physical taking.

(Relisted after the April 17, April 25, May 2, May 15, May 22, May 29, June 5 and June 12 conferences.)

Iowa Pork Producers Association v. Bonta, 24-728

Issues: (1) Whether a party alleging that California’s Proposition 12, “which enacts a pork sales ban to regulate the manner in which pigs are housed in states across the country,” discriminates against interstate commerce, both directly and under Pike v. Bruce Church, states a claim; and (2) whether lower federal courts evaluating fractured opinions from this court consider all justices’ opinions to determine the majority position on a legal issue, or instead are limited to consider only opinions concurring in the result.

(relisted after the May 15, May 22, May 29, June 5 and June 12 conferences.)