William Bulger v. Hugh Hurwitz

USCA4 Appeal: 22-1106 Doc: 48 Filed: 03/03/2023 Pg: 1 of 28

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 22-1106

WILLIAM M. BULGER, Administrator of the Estate of James Bulger,

Plaintiff - Appellant,

v.

HUGH HURWITZ, formerly John Doe 1 - ALL OF WHOM ARE EMPLOYEES
OF THE FEDERAL BUREAU OF PRISONS; J. A. KELLER, formerly John Doe 3
- ALL OF WHOM ARE EMPLOYEES OF THE FEDERAL BUREAU OF
PRISONS; ANGELA DUNBAR, formerly Jane Doe 4 - ALL OF WHOM ARE
EMPLOYEES OF THE FEDERAL BUREAU OF PRISONS; R. C. CHEATHAM,
formerly John Doe 5 - ALL OF WHOM ARE EMPLOYEES OF THE FEDERAL
BUREAU OF PRISONS; CHARLES LOCKETT, formerly John Doe 6 - ALL OF
WHOM ARE EMPLOYEES OF THE FEDERAL BUREAU OF PRISONS;
JOSEPH COAKLEY, formerly John Doe 7 and 8 - ALL OF WHOM ARE
EMPLOYEES OF THE FEDERAL BUREAU OF PRISONS; AMY RUIZ, formerly
Jane Doe 9 - ALL OF WHOM ARE EMPLOYEES OF THE FEDERAL BUREAU
OF PRISONS; JEFFREY SMITH, formerly John Doe 10 - ALL OF WHOM ARE
EMPLOYEES OF THE FEDERAL BUREAU OF PRISONS; ALICE
PISANESCHI, formerly Jane Doe 11 - ALL OF WHOM ARE EMPLOYEES OF
THE FEDERAL BUREAU OF PRISONS; JEREMY SHIRK, formerly John Doe 12
- ALL OF WHOM ARE EMPLOYEES OF THE FEDERAL BUREAU OF
PRISONS; ANTHONY MORI, formerly John Doe 13 - ALL OF WHOM ARE
EMPLOYEES OF THE FEDERAL BUREAU OF PRISONS; BRANDON
BOLEDOVIC, formerly John Doe 14 - ALL OF WHOM ARE EMPLOYEES OF
THE FEDERAL BUREAU OF PRISONS; JOHN/JANE DOE 2, ALL OF WHOM
ARE EMPLOYEES OF THE FEDERAL BUREAU OF PRISONS; JOHN/JANE
DOES 15-30, ALL OF WHOM ARE EMPLOYEES OF THE FEDERAL BUREAU
OF PRISONS; UNITED STATES OF AMERICA,

Defendants - Appellees.
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Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. John Preston Bailey, District Judge. (3:20-cv-00206-JPB-RWT)

Argued: January 26, 2023 Decided: March 3, 2023

Before DIAZ and THACKER, Circuit Judges, and Catherine C. EAGLES, United States
District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Diaz
and Judge Eagles joined.

ARGUED: Jay T. McCamic, MCCAMIC LAW FIRM, PLLC, Wheeling, West Virginia,
for Appellant. Martin V. Totaro, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees. ON BRIEF: Anthony I. Werner, JOHN & WERNER
LAW OFFICES, PLLC, Wheeling, West Virginia; L. Dante’ DiTrapano, Sean B. Shriver,
CALWELL LUCE DITRAPANO PLLC, Charleston, West Virginia, for Appellant. Brian
M. Boynton, Principal Deputy Assistant Attorney General, Mark B. Stern, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; William Ihlenfeld,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, for Appellees.

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THACKER, Circuit Judge:

William Bulger, on behalf of the Estate of former federal inmate James “Whitey”

Bulger (“Bulger”), brought suit against the United States and several Federal Bureau of

Prisons (“BOP”) officials after Bulger was allegedly beaten to death by fellow inmates.

The Estate (“Appellant”) alleges that BOP officials violated the Eighth Amendment by

failing to protect Bulger from the attack and failing to intervene to prevent Bulger’s transfer

to a “violent” facility. Appellant also sued the United States pursuant to the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. § 1346(b), alleging that prison officials had been

negligent in their failure to intervene and protect Bulger.

Appellant argues that its Eighth Amendment claims are cognizable under Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and its

progeny. Alternatively, if Appellant’s claims are not authorized by the existing Bivens

cases, Appellant requests that we extend Bivens to cover its claims.

For the reasons set forth below, we conclude that Appellant’s Bivens claims arise in

a new context and that several special factors, including separation-of-power implications

and an increased burden on the federal prison system, counsel against an extension of

Bivens in this new context. We also conclude that the discretionary function exception to

the FTCA applies to BOP officials’ decisions to transfer Bulger and place him in general

population.

Accordingly, we affirm the district court’s order dismissing Appellant’s claims.

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I.

On October 30, 2018, at approximately 8:20am, BOP staff members found Bulger

dead in his cell at the United States Penitentiary (“USP”) Hazelton (“Hazelton”), located

in Bruceton Mills, West Virginia. While Bulger’s exact time of death is unknown, he had

been housed at Hazelton for less than 14 hours, having arrived on the night of October 29,

2018, following his transfer from USP Coleman II (“Coleman”) in Sumterville, Florida.

Bulger gained notoriety as the leader of the Winter Hill Gang, a loose confederation

of organized crime figures in the Boston, Massachusetts area. As the leader, Bulger

engaged in myriad illegal activities, including murder, drug dealing, extortion,

bookmaking, and weapons trafficking. Despite his criminal history and role as a violent

organized crime leader, the Federal Bureau of Investigation (“FBI”) secretly recruited

Bulger to be an informant in 1975. During his time as an informant, Bulger continued to

be responsible for widespread criminal activity, including numerous murders.

In 1994, Bulger fled the Boston area and went into hiding after his former FBI

handler tipped him off about a pending indictment against him. Bulger was on the FBI’s

10 Most Wanted Fugitives list for over a decade until he was finally arrested in 2011. On

August 12, 2013, a federal jury convicted Bulger of numerous violent crimes, including

the murder of 11 individuals. As a result, Bulger was sentenced to two consecutive life

sentences plus five years.

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According to the complaint herein, at the time of his sentencing, Bulger suffered

from “a pre-existing heart condition.” J.A. 40. 1 The BOP assigns medical care levels to

inmates based on a variety of factors, with medical care level one corresponding to inmates

with the least medical need and level four corresponding to inmates with the greatest

medical need. The BOP then places inmates at institutions commensurate with the level

of medical care the inmate requires. In January 2014, the BOP identified Bulger as a

medical care level four inmate and housed him at the USP Tucson (“Tucson”) in Tucson,

Arizona. 2 On September 3, 2014, the BOP transferred Bulger from Tucson to Coleman.

Both Tucson and Coleman are known colloquially within the BOP as “soft yards” where

inmates who are vulnerable, medically compromised, or need protection are placed. Id. at

39–40. Both penitentiaries are high-security facilities able to provide inmates with level

four medical care.

In April 2018, officials at Coleman began an eight-month effort to transfer Bulger

to another BOP institution. The officials’ initial transfer request “was coded to indicate

Bulger required a higher level of medical care, or Care Level [four], for inmates who are

severely impaired and may require daily nursing care.” J.A. 214. Because his high care

level limited the number of institutions where Bulger could be designated, the April request

was denied. In October 2018, Coleman officials resubmitted their transfer request, this

1
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
2
After he was assaulted while housed in general population, Bulger spent time in a
Special Housing Unit at Tucson, where he was separated from the general inmate
population and housed alone in a single cell.

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time indicating that Bulger was a medical care level two. The BOP approved Bulger’s

transfer to Hazelton, a medical care level two institution. At the time of his transfer, Bulger

was 89 years old and utilized a wheelchair for long-distance mobility.

Bulger arrived at Hazelton on October 29, 2018, at approximately 6:49pm. Bulger

had a “social interview” at 7:25pm, and at 8:21pm, after staff reviewed his Presentence

Investigation Report and Inmate Central File, he was referred for a psychological exam.

J.A. 108. According to Joshua Brawley, Executive Assistant at Hazelton, “[W]ithin 24

hours of an inmate’s arrival, medical staff [are required to] screen the inmate in compliance

with BOP medical procedures to determine if there are medical reasons for housing the

inmate away from general population.” Id. However, it is unknown whether Bulger

actually received the required psychological exam or any other medical screening while at

Hazelton.

The night of his arrival at Hazelton, Bulger was placed in the general population.

The following morning at 8:20am -- less than 14 hours after his arrival -- BOP staff found

Bulger unresponsive in his cell. According to the complaint, “within hours of [that]

placement,” inmates “believed” to be from New England and loyal to the mafia killed

Bulger using a “lock in a sock” bludgeoning weapon. J.A. 42.

Appellant sued the United States and several BOP employees for their alleged roles

in Bulger’s transfer to Hazelton, placement in the prison’s general population, and

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subsequent death. Appellant’s amended complaint 3 includes three counts and seeks

compensatory and punitive damages. The first two counts are brought pursuant to Bivens

v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

against 12 named and 17 unnamed BOP employees in their individual capacities. The first

Bivens count claims that the individual defendants failed to protect Bulger in violation of

the Eighth Amendment. The second Bivens count claims that the individual defendants

failed to intervene to prevent Bulger’s transfer to Hazelton and subsequent murder in

violation of the Eighth Amendment. The third count claims negligence by the United

States pursuant to the FTCA. In support of its claims, Appellant alleges that Hazelton “was

not an appropriate placement” for Bulger because of his age, frailty, health, reputation as a

“snitch” informing on mafia members, and reputation as an alleged child molester, i.e., a

“chomo.” J.A. 36, 42.

On January 12, 2022, the district court granted motions to dismiss filed by the

individual defendants and the United States. With respect to Appellant’s Bivens claims,

the district court concluded that the “claims regarding failure to protect and failure to

intervene are clearly a new [Bivens] context,” J.A. 263, and that it would be improper to

expand Bivens to that new context because “multiple special factors counsel against

creating a new Bivens remedy,” id. at 266. With respect to Appellant’s FTCA claims, the

3
On September 1, 2021, Appellant’s original complaint was amended without
objection to include the names of some of the previously unknown individual defendants.

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district court concluded that the FTCA’s discretionary function exception barred the

estate’s claims because “[d]ecisions about how to safeguard prisoners are generally

discretionary.” Id. at 284. Accordingly, the district court denied Appellant’s request for

leave to conduct discovery in support of its FTCA claim, relying squarely on our decision

in Rich v. United States, 811 F.3d 140, 146 (4th Cir. 2015), in which we concluded that a

FTCA plaintiff was not entitled to discovery regarding the decision of federal prison

officials not to separate the plaintiff from other prisoners.

On January 31, 2022, Appellant filed a timely appeal.

II.

We review a district court’s grant of a motion to dismiss and dismissal for lack of

subject matter jurisdiction de novo. Stahle v. CTS Corp., 817 F.3d 96, 99 (4th Cir. 2016)

(motion to dismiss); Pornomo v. United States, 814 F.3d 681, 687 (4th Cir. 2016) (lack of

subject matter jurisdiction). “We review a denial of jurisdictional discovery for abuse of

discretion.” Rich v. United States, 811 F.3d 140, 144 (4th Cir. 2015).

III.

A.

42 U.S.C. § 1983 authorizes plaintiffs to bring an action for money damages against

state and local government officials who, while acting “under color of state law,” violated

the plaintiffs’ constitutional rights. However, there is no statutory counterpart under which

plaintiffs can sue federal officials for constitutional violations. Bivens provides the federal

analog to § 1983 claims. Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388, 391 n.4, 396 (1971).
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In Bivens, the Supreme Court held that an “implied” cause of action under the Fourth

Amendment entitled plaintiffs to sue federal officials for money damages arising from

unreasonable searches and seizures. See Bivens, 403 U.S. at 396–97. Although the Fourth

Amendment does not explicitly “provide for its enforcement by an award of money

damages,” the Court found that no “explicit congressional declaration” forbade such a

remedy and inferred a cause of action from general principles of federal jurisdiction to “use

any available remedy to make good the wrong done.” Id. (internal quotation marks

omitted).

Following Bivens, the Court found two more implied causes of action for money

damages under the Fifth and Eighth Amendments. In Davis v. Passman, 442 U.S. 228

(1979), the Court held that a former congressional administrative assistant could proceed

on her claim for money damages against her employer, a member of Congress who had

terminated her employment because of her sex, pursuant to the Fifth Amendment’s Due

Process Clause. Davis, 442 U.S. at 248. And in Carlson v. Green, 446 U.S. 14 (1980), the

Court held that an inmate’s estate could proceed on a claim for money damages against

prison officials for allegedly violating the inmate’s Eighth Amendment right to be free

from deliberate indifference to his serious medical needs by failing to treat the inmate’s

asthma, leading to his death. Carlson, 446 U.S. at 24–25.

Though it initially described Bivens broadly as establishing that “the victims of a

constitutional violation by a federal agent have a right to recover damages against the

official in federal court despite the absence of any statute conferring such a right,” Carlson,

446 U.S. at 18, in the 43 years since Carlson, the Court has “consistently rebuffed” requests
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to expand implied Bivens actions. Hernandez v. Mesa, 140 S. Ct. at 735, 743 (2020); see

also Egbert v. Boule, 142 S. Ct. 1793, 1799 (2022). In the last five years alone, the Court

has scaled back Bivens significantly, delivering a trilogy of opinions expressing opposition

toward any expansion of Bivens actions. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)

(noting that “expanding the Bivens remedy is now considered a disfavored judicial activity”

(internal quotation marks omitted)); Hernandez, 140 S. Ct. at 742–43 (noting that if “the

Court’s three Bivens cases [had] been . . . decided today, it is doubtful that we would have

reached the same result” (alterations in original) (internal quotation marks omitted));

Egbert, 142 S. Ct. at 1802 (“Now long past the heady days in which this Court assumed

common-law powers to create causes of action [as in Bivens], we have come to appreciate

more fully the tension between judicially created causes of action and the Constitution’s

separation of legislative and judicial power.” (internal quotation marks and citations

omitted)).

The Supreme Court has continued to caution lower courts to beware of “arrogating

legislative power.” Hernandez, 140 S. Ct. at 741. Because “creating a cause of action is a

legislative endeavor,” the Court warned that “the Judiciary’s authority to [create causes of

action under the Constitution] is, at best, uncertain.” Egbert, 142 S. Ct. at 1802–03. And

in Ziglar, the Court explained:

[I]t is a significant step under separation-of-powers principles
for a court to determine that it has the authority, under the
judicial power, to create and enforce a cause of action for
damages against federal officials in order to remedy a
constitutional violation.

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137 S. Ct. at 1856. However, the Court has chosen not to overrule its three Bivens cases,

electing instead to severely limit the reach of Bivens by imposing a highly restrictive two-

step analysis for Bivens cases. Hernandez, 140 S. Ct. at 743.

First, a court must determine whether a claim falls within the causes of action

authorized under the Supreme Court’s three Bivens cases -- Bivens, Davis, and Carlson --

or whether it “arises in a ‘new context’ or involves a ‘new category of defendants.’”

Hernandez, 140 S. Ct. at 743 (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68

(2001)). A context is “new” when it is “different in a meaningful way from previous Bivens

cases decided by [the] Court.” Ziglar, 137 S. Ct. at 1859.

If a court finds that a claim presents a “new context” different from the three Bivens

cases, it must “proceed to the second step and ask whether there are any special factors that

counsel hesitation about granting the extension” of Bivens. Hernandez, 140 S. Ct. at 743

(internal quotation marks and alterations omitted). This “special factors” inquiry must

focus on “separation-of-powers principles” and requires courts to ask whether judicial

intrusion into a given field is appropriate. Id. (quoting Ziglar, 137 S. Ct. at 1857). As the

Court explained:

[I]f there are sound reasons to think Congress might doubt the
efficacy or necessity of a damages remedy as part of the system
for enforcing the law and correcting a wrong, the courts must
refrain from creating the remedy in order to respect the role of
Congress in determining the nature and extent of federal-court
jurisdiction under Article III.

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Ziglar, 137 S. Ct. at 1858. Thus, where there is “reason to pause before applying Bivens

in a new context or to a new class of defendants,” a court should not extend Bivens.

Hernandez, 140 S. Ct. at 743.

Here, Appellant argues that its Bivens remedy remains a viable claim brought

pursuant to the Eighth Amendment and that the “individual defendants are liable for

violating . . . Bulger’s constitutional rights because they were deliberately indifferent to the

substantial risk of serious harm that he faced in being sent to Hazelton.” Appellant’s

Opening Br. at 14. Appellant alleges that federal officers failed to protect Bulger by

“inexplicably plac[ing] [Bulger] into the general population” at Hazelton despite knowing

the facility was “an extremely dangerous environment” for a prisoner like Bulger who was

both medically vulnerable and had a reputation as a “snitch” and child molester. Id.

Appellant maintains that its “failure to protect” and “failure to intervene” claims “do not

present a new Bivens context” because they fall within the class of Bivens actions

acknowledged by the Supreme Court in Carlson and Farmer v. Brennan, 511 U.S. 825

(1994). Id. at 12 (internal quotation marks omitted). Alternatively, Appellant argues that

if its claims are found to arise in a new Bivens context, we should conclude that “no

alternative, existing remedies and no ‘special factors’ . . . counsel hesitation in creating a

Bivens remedy here.” Id. at 18.

1.

Appellant’s Eighth Amendment Claims Present a New Bivens Context

We first address whether Appellant’s Eighth Amendment claims fall within the

context of Bivens and its progeny. The Supreme Court has warned lower courts to act with
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utmost hesitation when faced with actions that do not fall precisely under Bivens, Davis,

or Carlson, and this court has repeatedly heeded that warning. See, e.g., Dyer v. Smith, 56

F.4th 271, 275 (4th Cir. 2022) (rejecting request to extend Bivens to claims against

Transportation and Security Administration officers for violations of the First and Fourth

Amendments); Tate v. Harmon, 54 F.4th 839, 841–42 (4th Cir. 2022) (rejecting request to

extend Bivens to claims of “degenerate” conditions of confinement in violation of the

Eighth Amendment); Annappareddy v. Pascale, 996 F.3d 120, 126 (4th Cir. 2021)

(rejecting request to extend Bivens to claims against federal prosecutors and investigators

for violations of the Fourth and Fifth Amendments); Earle v. Shreves, 990 F.3d 774, 776

(4th Cir. 2021) (rejecting request to extend Bivens to claims of unlawful retaliation by

prison officials for filing grievances in violation of the First Amendment); Tun-Cos v.

Perrotte, 922 F.3d 514, 517–18 (4th Cir. 2019) (rejecting request to extend Bivens to claims

of unlawful searches and seizures by Immigration and Customs Enforcement agents in

violation of the Fourth and Fifth Amendments).

But Appellant contends that its Eighth Amendment failure to protect and intervene

claims against BOP officials do not present a new Bivens context because they are

sufficiently akin to the Supreme Court’s decisions in Carlson and Farmer. We disagree.

“[A] new context may arise if even one distinguishing fact has the potential to

implicate separation-of-powers considerations.” Tate, 54 F.4th at 846 (emphasis in

original) (citing Egbert, 142 S. Ct. at 1805). To be sure, the claim authorized in Carlson

was an Eighth Amendment claim. However, the Supreme Court has made clear that courts

should not interpret Carlson to apply outside the precise context at issue in that case, noting
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that even claims challenging the adequacy of medical care may involve the same “right

and . . . mechanism of injury” as in Carlson but still present “different” contexts. Ziglar,

137 S. Ct. at 1859 (discussing Malesko, 534 U.S. at 70, and n.4). As noted, Carlson

involved a prison official’s deliberate indifference to an inmate’s health by failing to

provide competent medical care after the inmate suffered a severe asthma attack, allegedly

leading to the inmate’s death. Carlson, 446 U.S. at 16. Here, Appellant’s claims are

premised not on a failure to provide adequate medical care but on BOP officials’ failure to

stop Bulger’s transfer to Hazelton and protect Bulger from prisoner-on-prisoner violence.

Such claims exceed the bounds of liability the Court’s previous Bivens actions established,

implicating “not only the scope of [each official’s] responsibilities and duties” but also the

organizational policies, administrative decisions, and economic concerns inextricably tied

to inmate transfer and placement determinations. Tate, 54 F.4th at 846. Thus, Appellant’s

claims are, we conclude, materially distinct from a failure to provide adequate medical care

claim like the one presented in Carlson.

Nonetheless, even if Appellant could make out a claim for an alleged failure to

provide constitutionally adequate medical treatment, a lack of competent medical care did

not cause Bulger’s death. Given this meaningful difference, we conclude that Appellant’s

failure to protect and intervene claims are not authorized by Carlson but instead present a

new context.

Likewise, Appellant’s reliance on Farmer is misplaced. In Farmer, an inmate

brought a Bivens suit pursuant to the Eighth Amendment against prison officials for

allegedly failing to protect the inmate from a violent beating and rape, even though the
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officials knew that the prison had a “violent environment” and the inmate was “particularly

vulnerable to sexual attack.” 511 U.S. at 831. As a panel of this court has already noted,

“while the [Supreme] Court allowed the action [in Farmer] to proceed, it never addressed

whether the claim was properly a Bivens claim.” Tate, 54 F.4th at 847. Rather, the Court

heard the case in order to resolve a circuit split regarding the proper legal test for deliberate

indifference. Farmer, 511 U.S. at 832. Although “[t]he Court acknowledged that the

action was brought under Bivens,” it “did not question the propriety of the Bivens remedy

in that case,” and the parties did not brief the issue. Earle, 990 F.3d at 778 n.1. Moreover,

the Court has never listed Farmer when compiling all of its Bivens cases. See Egbert, 142

S. Ct. at 1799–1800, 1802; Hernandez, 140 S. Ct. at 741, 743; Ziglar, 137 S. Ct. at 1854–

55, 1857. Therefore, Appellant’s theory that Farmer recognized a fourth context of Bivens

claims beyond the issues presented in Bivens, Davis, and Carlson is contrary to the

Supreme Court’s recognition that it “has refused” to “extend Bivens to any new context”

for “the past 30 years,” which includes the time period it decided Farmer. Ziglar, 137 S.

Ct. at 1857.

Appellant places considerable reliance on the Third Circuit’s decision in Bistrian v.

Levi, 912 F.3d 79 (3d Cir. 2018), in which the Third Circuit held that prisoner-on-prisoner

violence and failure to protect claims are not new contexts for Bivens claims. Id. at 88. In

Bistrian, a federal inmate claimed that prison officials violated his Eighth Amendment

rights by failing “to protect him from other prisoners and punitively detain[ing] him” in a

special housing unit. Id. at 83. The Third Circuit analogized the facts in Bistrian to those

in Farmer and allowed the inmate’s Bivens claim to proceed. Id. at 90–92. Although it
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recognized that Farmer “did not explicitly state that it was recognizing a Bivens claim,”

the Third Circuit expressly relied on Farmer to support its conclusion that the inmate’s

failure to protect claim did not arise in a new context. Id. at 90–91.

The Third Circuit attempted to reconcile its approach in Bistrian with the Ziglar

Court’s purposeful omission of Farmer as one of its Bivens cases by speculating, “It may

be that the [Supreme] Court simply viewed the failure-to-protect claim as not distinct from

the Eighth Amendment deliberate indifference claim in the medical context.” 912 F.3d at

91. However, the Third Circuit did not have the benefit of the Court’s more recent Bivens

guidance, as Bistrian was decided before the Court’s decisions in Hernandez and Egbert,

both of which also list Bivens, Carlson, and Davis as the only three cases in which the

Court has implied a Bivens action. See Hernandez, 140 S. Ct. at 741, 743; Egbert, 142

S. Ct. at 1799–1800, 1802. Despite ample opportunity to include Farmer, the Court has

made clear that the universe of recognized Bivens claims consists of only three cases:

Bivens, Davis, and Carlson. Ziglar, 137 S. Ct. at 1859. And lower courts should not

interpret these cases to apply outside the precise contexts at issue. Id.; see also Tun-Cos,

922 F.3d at 523 (noting that “quite minor” differences may amount to a new Bivens

context).

Accordingly, we find Appellant’s reliance on the Third Circuit’s Bistrian decision

unavailing as neither Bivens, Davis, nor Carlson involved an official’s alleged failure to

intervene and stop an inmate’s transfer to a particular facility or failure to protect an inmate

from prisoner-on-prisoner violence. Thus, such claims, we conclude, arise in a new

context.
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2.

Special Factors Counsel Against Extending Bivens to Encompass Appellant’s Claims

Appellant contends that even if its claims arise in a new context, there are no special

factors counseling against an extension of Bivens here. Again, we disagree.

When determining whether to extend Bivens to new contexts, courts are instructed

to consider “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.”

Ziglar, 137 S. Ct. at 1858. Although the Supreme Court has not provided an exhaustive

list of “special factors,” we have previously enumerated several factors that the Court has

noted would counsel hesitation for any extension of Bivens:

(1) “uncertainty alone” as to whether allowing a Bivens claim
would have systemwide consequences, Egbert, 142 S. Ct. at
1804; (2) a “new category of defendants,” Malesko, 534 U.S.
at 68; (3) a difference as small as the “rank of the officers
involved,” Ziglar, 137 S. Ct. at 1860; (4) the “statutory or other
legal mandate under which the officer was operating,” id.; (5)
a “potential effect on foreign relations,” Hernandez, 140 S. Ct.
at 744, and “national security,” id. at 746–47; (6) Congress[]
“repeatedly declin[ing] to authorize the award of damages” in
the relevant context, id. at 747; and (7) the risk that “the burden
and demand of litigation” would prevent Executive Officials
“from devoting the time and effort required for the proper
discharge of their duties,” Ziglar, 137 S. Ct. at 1860.

Tate, 54 F.4th at 846. Courts are also instructed to look to whether “there is

an alternative remedial structure present in a certain case.” Ziglar, 137 S. Ct. at 1858. “An

alternative remedy weighs against recognizing a new Bivens claim even if it is less

effective than the damages that would be available under Bivens and is not expressly

identified by Congress as an alternative remedy.” Dyer, 56 F.4th at 279.
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There is an overlap between the factors courts are to consider when determining

whether a purported Bivens claim arose out of a “new context” and whether special factors

counsel hesitation for any extension of Bivens. Egbert, 142 S. Ct. at 1803. Thus, while

the Court’s 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.” Id.

Below, the district court correctly concluded that “multiple special factors counsel

against creating a new Bivens remedy.” J.A. 266. First, as the district court explained,

Appellant’s claims would “require scrutiny of new categories of conduct and a new

category of defendants—namely, BOP employees involved in transferring inmates and

managing the agency’s housing system.” Id. at 263 (internal quotation marks omitted).

Second, Appellant’s claims “intersect with the statutory scheme delegating authority over

prison designation, transfer, and housing decisions to the BOP.” Id. (citation omitted).

Third, inmates have “an ‘alternative remedial structure’ for protecting a prisoner’s

interest in avoiding unwanted housing placements” that allows a prisoner to seek equitable

relief for issues related to confinement. J.A. 270 (quoting Ziglar, 137 S. Ct. at 1858).

Specifically, the BOP’s Administrative Remedy Program (“ARP”) allows “all inmates in

institutions operated by the Bureau of Prisons,” 28 C.F.R. § 542.10(b), “to seek formal

review of an issue relating to any aspect of his/her own confinement,” id. § 542.10(a).

Although “the ARP does not include a money damages remedy,” inmates may file “an

administrative grievance” with the BOP or seek “an injunction” in federal court to stop a

pending transfer to a new facility. J.A. 271 (internal quotation marks and citation omitted).
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Appellant challenges the sufficiency of the ARP, arguing that Bulger did not have

enough time to avail himself of the remedies offered by the ARP either before his transfer

to Hazelton or before he was killed. Appellant claims that for security reasons, “inmates

are not informed (nor are their counsel) of when and where they are to be transported.”

Appellant’s Opening Br. at 19. And, given the short window of time that Bulger was at

Hazelton, Appellant argues that he would have had no real opportunity to initiate any sort

of formal grievance process. Thus, Appellant contends, this is a case where “it is damages

or nothing.” Id. (quoting Bistrian, 912 F.3d at 92).

Significantly, however, “the relevant question ‘is not what remedy the court should

provide for a wrong that would otherwise go unredressed’ but instead ‘whether an elaborate

remedial system . . . should be augmented by the creation of a new judicial remedy.’” Tun-

Cos, 922 F.3d at 527 (quoting Bush v. Lucas, 462 U.S. 367, 388 (1983)). The ARP is the

“means through which allegedly unconstitutional actions and policies can be brought to the

attention” of the BOP. Malesko, 534 U.S. at 74. The potential unavailability of a remedy

in a particular circumstance does not warrant supplementing that scheme. See, e.g., Earle,

990 F.3d at 780 (declining to extend Bivens to include a claim for retaliatory confinement,

in part, because the ARP is a “special factor[] that counsel[s] hesitation”); Schweiker v.

Chilicky, 487 U.S. 412, 425 (1988) (declining to imply a Bivens remedy for due process

claims arising from the denial of Social Security benefits despite the unavailability of

compensatory damages under an alternate remedial scheme).

Additionally, allowing Appellant’s Bivens claims to proceed would conflict with

Congress’s choice “to give the BOP discretion over inmate placement, prohibit courts from
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reviewing inmate placement, and omit an individual-capacity damages remedy” from the

Prison Litigation Reform Act (“PLRA”). J.A. 269. The PLRA, which Congress enacted

one year after the Supreme Court decided Farmer, was designed to “limit litigation brought

by prisoners,” Montcalm Pub. Corp. v. Virginia, 199 F.3d 168, 171 (4th Cir. 1999), and

“remove the federal district courts from the business of supervising the day-to-day

operation” of prisons, Cagle v. Hutto, 177 F.3d 253, 257 (4th Cir. 1999). The PLRA “does

not provide for a standalone damages remedy against federal jailers.” Ziglar, 137 S. Ct. at

1865. Given circumstances like the one that confronts us today, “[i]nstitutional silence

speaks volumes and counsels strongly against judicial usurpation of the legislative

function.” Tun-Cos, 922 F.3d at 527. Accordingly, because Congress has expressed a

desire to prevent courts from interfering with BOP decisions and has been “conspicuously

silent about creating a remedy for prisoners to obtain damages from individual officers,”

the existence of the ARP and PLRA counsel hesitation in extending Bivens to Appellant’s

claims. J.A. 269.

Finally, a “substantial burden . . . would be placed on government operations if the

[c]ourt were to authorize a new category of prison litigation.” J.A. 272. Appellant’s claim

seeks to impose liability on prison officials on a systemic level. Determinations about the

adequacy of a particular facility to meet the medical needs of an inmate and to provide the

level of supervision deemed necessary are typically the subject of broad policies and

systemwide procedures that involve a multitude of decisionmakers on almost every level

of the BOP’s organizational hierarchy. As the Egbert Court noted:

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The Bivens inquiry does not invite federal courts to
independently assess the costs and benefits of implying a cause
of action. A court faces only one question: whether there is
any rational reason (even one) to think that Congress is better
suited to weigh the costs and benefits of allowing a damages
action to proceed.

142 S. Ct. at 1805 (internal quotation marks omitted) (emphasis in original). We are ill-

suited to “predict the systemwide consequences of recognizing a cause of action under

Bivens” in this context and Congress is “better equipped to decide whether existing

remedies should be augmented by the creation of a new judicial remedy.” Id. at 1803–04

(internal quotation marks omitted).

Because each special factor independently presents a “sound reason[] to think

Congress might doubt the efficacy or necessity of a damages remedy” in this new context,

Ziglar, 137 S. Ct. at 1858, we affirm the district court’s order dismissing Appellant’s

Bivens claims.

B.

The FTCA effects a limited waiver of sovereign immunity and creates a cause of

action for certain tort claims against the United States “where the United States, if a private

person, would be liable to the claimant in accordance with the law of the place where the

act or omission occurred.” 28 U.S.C. § 1346(b)(1). However, there are several exceptions

that limit the FTCA’s waiver of sovereign immunity.

Relevant here, the discretionary function exception bars suit for any claim “based

upon the exercise or performance or the failure to exercise or perform a discretionary

function or duty on the part of a federal agency or an employee of the Government, whether

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or not the discretion involved be abused.” 28 U.S.C. § 2680(a). This provision -- which

we have previously branded as the FTCA’s “most important” exception, Suter v. United

States, 441 F.3d 306, 310 (4th Cir. 2006) -- was designed “to prevent judicial ‘second-

guessing’ of legislative and administrative decisions grounded in social, economic, and

political policy through the medium of an action in tort.” United States v. S.A. Empresa de

Viacao Aerea Rio Grandense, 467 U.S. 797, 814 (1984); see also Wood v. United States,

845 F.3d 123, 128 (4th Cir. 2017) (explaining that the FTCA “shield[s] [discretionary]

decisions of a government entity made within the scope of any regulatory policy expressed

in statute, regulation, or policy guidance, even when made negligently”). “Because

waivers of sovereign immunity must be strictly construed,” Wood, 845 F.3d at 127, “FTCA

plaintiffs have the burden of showing that the discretionary function exception does not

foreclose their claim,” Seaside Farm, Inc. v. United States, 842 F.3d 853, 857 (4th Cir.

2016).

To determine whether the discretionary function exception applies in a particular

case, we engage in a two-step analysis. First, we consider whether the conduct at issue

“involves an element of judgment or choice.” Rich v. United States, 811 F.3d 140, 144

(4th Cir. 2015). Conduct involves an element of judgment or choice unless a “federal

statute, regulation, or policy specifically prescribes a course of action for an employee to

follow.” Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536 (1988). A

document that sets forth recommended actions or improvements does not demonstrate the

absence of discretion. Indem. Ins. Co. of N. Am. v. United States, 569 F.3d 175, 180–81

(4th Cir. 2009). Nor does a regulation that, although requiring adherence to a general
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standard, fails to dictate a course of action for achieving that standard. See Rich, 811 F.3d

at 145 (explaining that nothing in the relevant regulation “requires that any specific action

be taken by the various prison officials”). Rather, the source of the directive must either

expressly prescribe or proscribe “a particular course of action” in order to eliminate an

agency’s discretion for the purposes of the discretionary function exception. Pornomo v.

United States, 814 F.3d 681, 691 (4th Cir. 2016); see also Berkovitz, 486 U.S. at 536

(noting that a government official lacks judgment or choice when “a federal statute,

regulation, or policy specifically prescribes a course of action for an employee to follow”).

Second, we consider whether the conduct at issue “involve[d] the permissible

exercise of policy judgment.” Berkovitz, 486 U.S. at 537. This inquiry focuses “not on the

agent’s subjective intent . . . but on the nature of the actions taken and on whether they are

susceptible to policy analysis.” United States v. Gaubert, 499 U.S. 315, 325 (1991).

“When established governmental policy, as expressed or implied by statute, regulation, or

agency guidelines, allows a government agent to exercise discretion, it must be presumed

that the agent’s acts are grounded in policy when exercising that discretion.” Id. at 324. If

the challenged actions or omissions satisfy those two steps, the government’s conduct is

considered “discretionary within the meaning of the exception,” and courts lack

jurisdiction “whether or not the discretion involved be abused.” Pornomo, 814 F.3d at 687

(quoting 28 U.S.C. § 2680(a)).

Here, the challenged BOP actions -- assessing Bulger’s medical condition,

transferring him to Hazelton, and placing him within general population -- meet both of

the requisite prongs. First, there was no federal statute, regulation, or policy that
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“specifically prescribe[d] a course of action” with respect to the challenged conduct.

Berkovitz, 486 U.S. at 536. The complaint cites a federal statute requiring the BOP to

“provide for the safekeeping, care, and subsistence of all persons charged with or convicted

of offenses against the United States” and “provide for the protection . . . of all persons

charged with or convicted of offenses against the United States.” J.A. 47 (quoting 18

U.S.C. § 4042(a)(2)–(3)). However, the “broad directives” in that statute afford the BOP

“discretion regarding the implementation of those mandates.” Rich, 811 F.3d at 145. The

statute does not dictate any particular course of action or proscribe certain conduct. Given

the general language of the statute, prison officials exercise broad discretion in

safeguarding and protecting inmates. Thus, the first prong of the discretionary function

exception is satisfied.

Turning to the second step of the inquiry, because decisions concerning “where to

place inmates and whether to keep certain individuals . . . separated” invoke several policy

considerations for prison officials, “they are precisely the kind of determinations that the

discretionary function exception is intended to protect.” Rich, 811 F.3d at 146. “Factors

such as available resources, proper classification of inmates, and appropriate security levels

are inherently grounded in social, political, and economic policy.” Id. (internal quotation

marks omitted). “[P]risoner placement and the handling of threats posed by inmates

against one another are part and parcel of the inherently policy-laden endeavor of

maintaining order and preserving security within our nation’s prisons.” Id. at 145 (internal

quotation marks omitted) (agreeing with the reasoning of other circuit courts). Therefore,

because the challenged actions in this case satisfy both steps of the inquiry, we hold that
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the discretionary function exception shields Appellees from liability for the decisions of

BOP officials regarding Bulger’s transfer and placement in general population.

C.

We also hold that the district court did not abuse its discretion by “follow[ing] the

lead” of our decision in Rich and denying Appellant’s request for leave to conduct

discovery in support of its FTCA claim. J.A. 285. In Rich, an inmate sued the United

States pursuant to the FTCA, alleging that prison officials had been negligent in failing to

protect him from an attack in the recreation area by a white supremacist group known as

the “Aryan Brotherhood.” 811 F.3d at 142. The district court granted the government’s

motion to dismiss for lack of subject matter jurisdiction, concluding that “the discretionary

function exception to the FTCA applied both to the prison officials’ decision not to separate

[the inmate] from his attackers, as well as to the manner in which the officials searched

other inmates prior to placing them with [the inmate] in the recreation [area].” Id. The

court also held that the inmate was “not entitled to discovery” with respect to “the decisions

of [prison] officials regarding prisoner placement . . . because no facts that [the inmate]

could uncover in discovery would establish jurisdiction.” Id. at 146.

Because prisoner transfer and placement decisions necessarily implicate policy

considerations, discovery would serve no proper purpose in this case. Even accepting all

of Appellant’s allegations regarding Bulger’s care level designation and status as true, the

discretionary function exception would still apply to the decisions the officials made

regarding Bulger’s placement, ultimately depriving this court of jurisdiction. See Rich,

811 F.3d at 145 (observing that while Congress charged the BOP with protecting and
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safekeeping federal inmates, it afforded BOP officials “discretion regarding the

implementation of those mandates” and did so to accomplish “the inherently policy-laden

endeavor of maintaining order and preserving security within our nation’s prisons”

(internal quotation marks omitted)).

Appellant argues that some “unknown facts and policies” potentially revealed

through discovery “could very well directly impact the FTCA claims.” Appellant’s

Opening Br. at 25. Specifically, Appellant seeks documents related to potential missteps

by prison employees when addressing “security and medical concerns relating to [Bulger’s]

ongoing treatment and final placement at Hazelton.” Id. But even if Appellant could obtain

such documents, prisoner placement decisions are discretionary, and the discretionary

function exception applies “whether or not the discretion involved be abused.” 28 U.S.C.

§ 2680(a); see also Wood, 845 F.3d at 127–28. Because considerations like internal

security and the availability of administrative resources “would be inevitably implicated”

in any policies that led to the transfer and placement of Bulger, nothing would be gained

by the discovery Appellant seeks. Seaside Farm, 842 F.3d at 860; see also Gonzalez v.

United States, 814 F.3d 1022, 1031–32 (9th Cir. 2016) (refusing discovery because

available agency guidelines granted discretion); Baer v. United States, 722 F.3d 168, 176–

77 (3d Cir. 2013) (refusing discovery because plaintiffs could not establish a “reasonable

expectation that discovery will reveal evidence of” an agency policy that “would overcome

application of the discretionary function exception”); Davila v. United States,

713 F.3d 248, 263–64 (5th Cir. 2013) (refusing discovery because the plaintiff failed to

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allege any “well-pleaded facts or evidence to refute the government’s assertion . . . that no

[nondiscretionary] policy exists”).

In Rich, we did remand for “discovery on the issue whether and how the prison

officials performed the patdowns and searches, and whether more specific directives

existed regarding the manner of performing the patdowns and searches.” 811 F.3d at 148.

That decision, however, reflects our recognition that claims involving negligent patdowns,

unlike claims involving prisoner placement, are not facially protected by the discretionary

function exception since the BOP Program Statement suggested that more specific

directives existed. Significantly, while the prison officials in Rich may have erred in how

they followed policies “regarding prisoner placement” or were negligent in their “decision

to not separate [the plaintiff] from his attackers,” we did not permit discovery into those

topics because we determined that such decisions were inherently discretionary. Id. at 146.

Appellant’s view would permit a FTCA plaintiff to obtain discovery anytime they surmise,

without basis, the existence of some unspecified mandatory policy or procedure that might

have an unexplained bearing on the case. Such free-ranging discovery would “undermine

the discretionary function exception and introduce the very litigation pressures that

Congress meant to avoid when it developed the exception.” Crawford v. United States,

No. 1:17-cv-224, 2019 WL 2366017, at *7 (N.D. W. Va. June 4, 2019) (citing Mitchell v.

Forsyth, 472 U.S. 511, 525–27 (1985)).

Therefore, because Appellant could not uncover any facts that would establish

jurisdiction through discovery, the district court did not abuse its discretion in refusing

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discovery regarding Appellees’ decision to transfer Bulger to Hazelton and place him in

general population. 4

IV.

For the foregoing reasons, the district court’s order dismissing Appellant’s Bivens

and FTCA claims is

AFFIRMED.

4
We note that on December 7, 2022, the Department of Justice completed its
investigation into Bulger’s placement at Hazleton and subsequent death and issued a report
titled “Investigation and Review of the Federal Bureau of Prisons’ Handling of the Transfer
of Inmate James ‘Whitey’ Bulger.” ECF No. 40-2. On December 22, 2022, Appellant
moved to supplement the record with this report. ECF No. 40-1. We take judicial notice
of the report pursuant to Federal Rule of Evidence 201. Therefore, we deny Appellant’s
motion to supplement the record as moot. Nonetheless, nothing in the report alters our
opinion. For example, the report identifies the BOP’s “2014 Medical Care Level
Guidelines” as those in place during the relevant time period and notes that such guidelines
“allowed BOP healthcare providers to exercise their clinical judgment.” ECF No. 40-2, at
13. While the report acknowledges that “certain medical conditions and certain types of
interventions required default medical care level classifications,” the report also states, “as
. . . written, there could be reasonable differences of opinion as to the appropriate medical
care level for Bulger under the guidelines.” Id. at 13, 65. The report further states, “BOP
policy [did] not contain specific steps for [BOP officials] to take or criteria to consider
before approving the transfer of a[n] . . . inmate, other than identifying [those inmates who
needed to be separated from Bulger].” Id. at 68. Appellant has not alleged that BOP
officials failed to identify those inmates before approving Bulger’s transfer to Hazelton,
and the DOJ report confirms that officials did, in fact, satisfy this requirement. Id.

28