Cohen v. United States of America

Background

Michael Cohen alleged that federal officials returned him to prison in retaliation for his planned book and public statements criticizing then-President Donald J. Trump. Cohen had pleaded guilty to crimes in 2018 and was serving a 36-month sentence. During the COVID-19 pandemic, the Federal Bureau of Prisons approved him for furlough and planned home confinement.

When Cohen reported to the United States Probation Office on July 9, 2020, officers gave him a home-confinement agreement that prohibited media engagement, including publishing books, and prohibited social-media activity. Cohen and his attorney questioned that provision and asked whether it could be changed. While they waited for a response, marshals remanded Cohen to prison on the stated ground that he had failed to agree to the home-confinement terms. Cohen alleged that he had not refused to agree and was prepared to sign the agreement as written.

Cohen was transported to prison, placed first in a segregated housing unit and then in solitary confinement for sixteen days. He alleged that the cell was poorly ventilated, lacked air conditioning, and frequently exceeded 100 degrees, causing health problems. In an earlier related proceeding, Judge Alvin K. Hellerstein ordered Cohen released to home confinement and found that the return to custody was retaliatory for Cohen’s desire to publish a book critical of the President and discuss it on social media.

Claims and motions

Cohen asserted one cause of action against the individual defendants under Bivens, an implied damages remedy for certain constitutional violations by federal officials. He alleged retaliation for protected speech under the First Amendment, an unlawful seizure under the Fourth Amendment, and unconstitutional confinement conditions under the Eighth Amendment.

He asserted six claims against the United States under the Federal Tort Claims Act, or FTCA. Those claims alleged retaliation under New York law; false arrest, false imprisonment, and abuse of process; negligent failure to protect; negligent infliction of emotional distress; intentional infliction of emotional distress; and negligent hiring, retention, training, and supervision.

Bivens claims

The individual defendants argued that Cohen could not use Bivens to seek damages, even assuming he adequately alleged constitutional violations. The court agreed. It explained that the Supreme Court had categorically held that there is no Bivens action for First Amendment retaliation. Cohen’s Fourth Amendment claim also arose in a new context because it involved Bureau of Prisons officials, a former President, and a former Attorney General rather than the narcotics agents involved in the original Bivens case. His Eighth Amendment claim likewise arose in a new context because it concerned solitary-confinement conditions rather than the inadequate medical care involved in the Supreme Court’s earlier Carlson decision.

The court further held that alternative remedies—including the Bureau of Prisons’ administrative process, a petition challenging the execution or conditions of confinement, and possible injunctive relief—were reasons not to recognize a new Bivens damages remedy. The court acknowledged that these remedies would not fully compensate Cohen for past injuries, but stated that Supreme Court precedent makes the availability of an imperfect alternative sufficient. The court dismissed Cohen’s Bivens claims against all individual defendants. Because those claims were dismissed on that basis, the court did not decide Donald J. Trump’s separate argument that presidential immunity independently barred the claims.

FTCA claims

The court dismissed Cohen’s FTCA retaliation claim because, as Cohen’s opposition made clear, the claim was based on the First Amendment rather than on an independent New York tort. The FTCA does not waive the United States’ immunity for constitutional tort claims.

The court dismissed the false-arrest and false-imprisonment claims because Cohen’s confinement was privileged under his existing sentence. Although Cohen had temporarily been released on furlough and was expected to move to home confinement, he remained in federal custody while serving his sentence. The court explained that false imprisonment concerns detention without legal process, while Cohen’s confinement occurred pursuant to legal process from his sentence. The court also dismissed the abuse-of-process claim because Cohen alleged that officials misused their authority under an existing sentence, not that they improperly caused legal process to issue for a collateral purpose.

The court deemed Cohen’s negligent-infliction and intentional-infliction emotional-distress claims abandoned because he did not respond to the government’s argument that those claims failed along with the false-imprisonment and abuse-of-process claims.

The court dismissed the negligent hiring, retention, training, and supervision claim under the FTCA’s discretionary-function exception. That exception preserves the United States’ immunity for governmental conduct involving judgment or choice that is grounded in public-policy considerations. The court held that federal personnel decisions generally fall within the exception.

The court also dismissed Cohen’s negligent-failure-to-protect claim. Cohen’s complaint was unclear whether the alleged negligence resulted from prison policies and procedures or from an individual guard’s carelessness. At oral argument, however, Cohen’s counsel said that Cohen relied only on the policies and procedures theory. The court held that decisions concerning prison maintenance and operating procedures fall within the discretionary-function exception.

Disposition

The court granted the motions to dismiss. The court stated that the defendants’ request to stay discovery pending resolution of those motions should be denied as moot because the discovery request had already been addressed.