The Supreme Court has denied the petition for certiorari in Byrd v. Lamb, which asked whether a Bivens claim is applicable when a Department of Homeland Security agent displays his firearm in a public parking lot. The Fifth Circuit declined to recognize a Bivens claim, distinguishing the incident in Byrd v. Lamb from Bivens by noting the personal nature of the alleged dispute, the location of the incident away from Byrd’s home or property, and Lamb’s display of a firearm rather than the use of physical force. When Byrd petitioned for certiorari, Boyden Gray & Associates filed the brief in opposition and several supplemental briefs, arguing that the Court should not take up the case as the decision below was correctly decided and there is no circuit split.

The brief further argued that if the Court did take up the case it should do so only to overrule Bivens, as there is no historical support for federal courts creating direct damages actions and such actions violate the separation of powers.

Traditionally, courts heard long-existing common-law claims (usually trespass), where the constitutionality of the federal defendant’s actions sometimes arose as a defense (not as an element of the plaintiff’s cause of action). . . . By creating an affirmative federal cause of action, Bivens usurped Congress’s legislative power under Article I’s Vesting Clause. This Court has recognized the “tension between this practice [of creating Bivens causes] and the Constitution’s separation of legislative and judicial power.”  Thus, over the last few decades, the Court has increasingly “expressed doubt about [its] authority to recognize any causes of action not expressly created by Congress.”

The full brief is available here.