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CA6 (2-1) - No Bivens at Border: Elhady v. Bradley

November 22, 2021 (1 min read)

Elhady v. Bradley

Maj. - "In short, when it comes to the border, the Bivens issue is not difficult—it does not apply. And district courts would be wise to start and end there.  We reverse and remand for the district court to enter final judgment for Bradley."

Dissent - "By choosing not to raise the issue on appeal, defendant Bradley, represented by the Department of Justice, forfeited his argument that Elhady does not have a cause of action under Bivens. As a general rule, we do not reach forfeited arguments. That rule should apply especially in cases such as this one, which involves a difficult question about the reach of Bivens that the Government repeatedly declined to ask us to address."

[Case below: Elhady v. Bradley, 438 F.Supp. 3d 797 (E.D. Mich. 2020).]