“Bivens Survives the Inspector General Act”
A Comprehensive Commentary on Arias v. Herzon, No. 23-1618 (1st Cir. 2025)

1. Introduction

Arias v. Herzon presented the U.S. Court of Appeals for the First Circuit with a question that has lurked beneath nearly every modern Bivens-type case: Does the 1988 extension of the Inspector General Act (“IGA”) to the Department of Justice— thereby supplying an internal administrative complaint process against federal law-enforcement officers—silently extinguish Bivens remedies for common Fourth-Amendment excessive-force claims? The district court said “yes” and granted summary judgment to six DEA agents. On appeal the First Circuit, in an opinion by Chief Judge Barron and over a partial dissent by Judge Lynch, said “no.”

Because the majority resurrects the traditional Bivens remedy in circumstances that many courts had begun to deem foreclosed, Arias carries significant precedential weight both within and beyond the First Circuit.

2. Summary of the Judgment

• The Court REVERSED summary judgment on Arias’s Fourth-Amendment excessive-force claims, holding that the claims do not arise in a “new context” as compared with Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), despite the availability of the IGA complaint procedure.
• The Court AFFIRMED summary judgment on Arias’s “failure-to-intervene” theory, finding Arias had not argued why that theory fell within Bivens or why it should be extended.
• Result: Arias’s core excessive-force claims return to the district court; his bystander-liability claims are gone.

3. Analytical Commentary

3.1 Precedents Cited and Their Influence

• Bivens (1971) – recognized an implied damages action against federal narcotics agents for Fourth-Amendment violations.
• Davis v. Passman (1979) – Fifth-Amendment sex-discrimination claim against a congressman.
• Carlson v. Green (1980) – Eighth-Amendment inadequate medical care claim against federal prison officials.
• Ziglar v. Abbasi (2017) – re-emphasized that extending Bivens is a “disfavored judicial activity”; introduced the “new context / special factors” template.
• Hernandez v. Mesa (2020) – cross-border shooting; declined to extend Bivens.
• Egbert v. Boule (2022) – Border Patrol use-of-force; clarified that step one and step two “often collapse” and that any “special factor” ends the case.

The majority relies heavily on Bivens itself and distinguishes Egbert by noting that the alternative remedy in Egbert was discussed only at step two, after the parties had agreed the context was already new. Judge Lynch’s dissent marshals the same recent Supreme Court corpus to argue the opposite result, underscoring how unsettled lower-court approaches remain.

3.2 Legal Reasoning of the Majority

1. Step-One Focus (“New Context”):
   • Bivens involved line narcotics agents, a run-of-the-mill arrest, and an allegation of excessive force—a frame that matches Arias’s case “in all material respects.”
   • Differences invoked by the government—execution of a warrant, public parking-lot setting, presence of IGA procedure—are not “meaningful” because they do not require re-weighing policy concerns that the Supreme Court already weighed in Bivens.
   • Therefore the context is old; the Bivens remedy applies automatically; no need to reach step two.
2. The Inspector General Act Issue:
   • Nothing in the IGA expressly displaces Bivens; Congress spoke expressly on displacement in the Westfall Act (also 1988) and preserved personal-capacity suits.
   • Supreme Court cases decided after the 1988 amendments continue to treat Bivens as viable; thus it would be odd to presume Congress silently killed it in 1988.
3. Failure-to-Intervene Theory:
   • This does present a new context because Bivens never considered bystander liability.
   • Because Arias offered no argument why to extend Bivens, the court affirmed dismissal.

3.3 Legal Reasoning of the Dissent

Judge Lynch would have affirmed dismissal across the board. Key points:

• Under Egbert, the existence of any “alternative remedial structure” (i.e., the IGA) is itself both a “meaningful” difference (step one) and a “special factor” (step two).
• The warrant, public setting, and safety risks distinguish the arrest from the home-entry in Bivens.
• The majority deepens circuit splits and undervalues congressional primacy.

3.4 Likely Impact of the Decision

• Within the First Circuit: Plaintiffs alleging traditional excessive-force claims against federal officers may now survive dismissal notwithstanding the IGA. District courts must parse whether the context is genuinely new before leaping to “special factors.”
• Nationally: The opinion emboldens circuits that still allow some Bivens vitality (7th, 9th, parts of the 10th) and squarely conflicts with others (4th, 5th, 6th, 11th). The divergence increases the likelihood of Supreme Court intervention.
• For Congress: The judgment underscores that, absent explicit statutory language, courts may keep applying Bivens. If Congress wishes to bar individual-capacity suits, it must say so.
• For Federal Agencies: Internal affairs and Inspector General processes are still important, but agencies cannot rely on them alone to shield agents from personal liability in routine arrests within the First Circuit.

4. Complex Concepts Simplified

• Implied Cause of Action: A judicially created right to sue for damages even though no statute expressly authorises it.
• Bivens “New Context” Test: Is the plaintiff’s claim materially different from the three Supreme Court cases that allowed implied remedies? If not, Bivens applies automatically.
• Special Factors Counselling Hesitation: Policy considerations (separation of powers, foreign affairs, national security, alternative remedies) that tell courts to defer to Congress rather than invent a new remedy.
• Inspector General Act (IGA): A statute establishing independent watchdogs inside federal agencies who can investigate employee misconduct, including DEA agents.
• Failure-to-Intervene: A bystander-liability theory where an officer is sued for not stopping another officer’s constitutional violation. Not part of original Bivens.

5. Conclusion

Arias v. Herzon is the most robust defence of Bivens since the Supreme Court’s recent retrenchment. The First Circuit holds that Congress’s creation of an administrative complaint avenue—even one as formal as the IGA process—does not by itself kick a garden-variety excessive-force claim into “new context” territory.

The decision preserves a narrow but important lane for constitutional tort suits against federal agents, clarifies the interaction between steps one and two of the Bivens framework, and signals to lawmakers that explicit statutory language—not administrative silence—is required to retire Bivens altogether. Whether the Supreme Court will embrace or repudiate this approach remains to be seen, but for now, within the First Circuit, Bivens remains alive for ordinary excessive-force arrests.