Whether a Bivens remedy is available for an inmate's Fifth Amendment claims alleging race-based discrimination and procedural due process violations by prison officials

No question identified. : 2. The decision of the Fourth Circuit presents important and recurring questions concerning whether a criminal defendant may pursue claims for violations of his Fifth Amendment Due Process and Equal Protection rights under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Applicant Mays was working as a factory-worker in prison when his supervisors discriminated against him on the basis of his race. Certain of Respondents withheld information from Mays that was necessary to complete his work as a lead mechanic, falsely accused Mays of disrupting the orderly running of the facility, refused to get tools for Mays while getting them for a white co-worker, and allowing white inmates to withhold work information from Mays despite his senior position and authorization to access it. As a result, Mays—an African American inmate—was fired from his position in the factory while a white co-worker was not. Then, certain of Respondents denied Mays due process by placing him in administrative detention and transferring him to another facility using falsified evidence and without providing him notice of the misconduct he allegedly committed to warrant these actions. The Fourth Circuit below ultimately held that Mays’ Fifth Amendment claims presented a new Bivens context because “[t]he Supreme Court has never authorized a Bivens claim for procedural due process or race-based discrimination,” even though the Court has allowed Bivens claims for gender-based discrimination and by federal inmate prisoners against prison officials. See Davis v. Passman, 442 U.S. 228 (1979) and Carlson v. Green, 446 U.S. 14 (1980). Moreover, the question whether a Bivens remedy for wrongful discrimination in violation of the Fifth Amendment has divided the courts of appeals. Several courts of appeals hold that such claims are cognizable under Bivens, while other courts of appeals agree with the Fourth Circuit’s decision below that such claims present a new, impermissible context under Bivens. For example, in contrast to the decision below, the Third Circuit has held that prison officials’ violation of an inmate’s Fifth Amendment due process rights by failing to protect an inmate from violence does not constitute a new Bivens context. Bistrian v. Levi, 912 F.3d 79, 90 (8d Cir. 2018); see also Farmer v. Brennan, 511 U.S. 825, 83249 (1994). By holding that Mays’ Fifth Amendment claims present a new context under Bivens, the panel decision deepens the existing circuit split. 3. Good cause exists for this requested extension. Undersigned counsel, Lawrence D. Rosenberg of Jones Day, directs the West Virginia University College of Law’s Supreme Court Litigation Clinic, which is co-counsel in this case. The Clinic students are preparing for upcoming exams and are also engaged in a number of other cases including United States v. Hashimi, No. 22-7190 (4 Cir.), in which Appellant’s opening brief and