Two federal judges in Colorado have now taken the rare step of calling for Congress to roll back the U.S. Supreme Court’s broad limitations on suing federal officials for money when they violate plaintiffs’ constitutional rights.

U.S. District Court Senior Judge Christine M. Arguello, in dismissing the claims of an incarcerated man who alleged federal prison employees were deliberately indifferent to his serious medical needs, simultaneously urged Congress on Thursday to “act promptly” to address the high hurdle federal inmates face in getting their claims heard in a courtroom.

The extraordinary appeal by a federal judge to the legislative branch follows an August 2023 order from U.S. District Court Senior Judge William J. Martínez, who also criticized the fact that prisoners, if they are in a federal facility, are largely precluded from holding corrections officials individually accountable. At the time, Martínez lamented that he had to dismiss a cruel-and-unusual punishment lawsuit from a plaintiff who, had he been incarcerated in a state facility, would have a strong constitutional claim.

“Congress must act promptly to rectify this gaping void in the remedies available to federal prisoners subjected to unconscionable misconduct on the part of federal corrections officers,” Martínez wrote.

“The Court adds its voice to those of its colleagues in calling on Congress” to fix the disparity, Arguello added in her own April 4 order, quoting Martínez’s plea.

Lawsuits seeking money damages against federal employees for constitutional violations are legally known as a “Bivens remedy,” stemming from a 1971 Supreme Court decision, Bivens v. Six Unknown Named Agents. In that case, federal narcotics officers entered a man’s home without a warrant, arrested and strip searched him.

A majority of the court decided plaintiff Webster Bivens could sue for a violation of the Fourth Amendment, which prohibits unreasonable searches and seizures. Since then, the Supreme Court has recognized a Bivens remedy exists for other, limited scenarios.

However, in 2022, the court handed down a 6-3 decision in Egbert v. Boule, effectively throttling all future Bivens remedies. The majority concluded Bivens remedies are not available when Congress or the executive branch is “better equipped” to create a method for addressing constitutional violations.

Quickly, the Denver-based U.S. Court of Appeals for the 10th Circuit applied the new constraint to shut down the claims of federal prisoners. While the Supreme Court may have been open to such lawsuits in early Bivens remedy cases, it has “progressively chipped away at the decision — to the point that very little of its original force remains,” observed Senior Judge Bobby R. Baldock in the August 2022 decision of Silva v. United States.

Although some congressional Democrats briefly attempted to amend the law to enable plaintiffs to sue federal officers in the same way they may file claims against state officials, the recent proposal ultimately went nowhere.

In the latest decision out of Colorado implicating Bivens remedies, Peter George Noe, who is incarcerated at the U.S. Penitentiary — Administrative Maximum Facility in Florence, sought to hold two medical employees liable for failing to properly treat his pain and inflammation. In December, the 10th Circuit dismissed a similar set of claims from Noe on the grounds that its own Silva decision served to bar federal prisoners’ suits. Instead, plaintiffs needed to file a grievance with the prison system.

U.S. Magistrate Judge Scott T. Varholak, who handled both of Noe’s recent lawsuits, recommended in February that Arguello dismiss Noe’s medical claims. Although Varholak stopped short of calling for Congress to overturn the Supreme Court’s erasure of federal prisoners’ ability to sue, he, too, made his distaste for the status quo clear.

“Under the rationale of this Recommendation, a federal prison official may sadistically beat an inmate to within an inch of his life and that inmate will not have a civil remedy against that prison official — after all, the inmate may file a grievance,” Varholak wrote. “To state the obvious, were a state prison official to do the same thing, that state prison official would be subject to civil liability.”

Arguello adopted the recommendation and dismissed Noe’s claims against the individual defendants who allegedly violated his rights.

The case is Noe v. United States of America et al.