                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 16a0111p.06

                  UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


 STEPHEN TED KOPROWSKI,                                ┐
                                Plaintiff-Appellant,   │
                                                       │
                                                       │
        v.                                              >      No. 14-5451
                                                       │
                                                       │
 KAREN BENNETT BAKER; JORGE VAZQUEZ-                   │
 VELAZQUEZ; RICHARD R. RAMIREZ; RHONDA JONES;          │
 ERIC D. WILSON; MARK MCHARGUE,                        │
                          Defendants-Appellees.        │
                                                       ┘
                        Appeal from the United States District Court
                       for the Eastern District of Kentucky at London.
               No. 6:11-cv-00183—Gregory F. Van Tatenhove, District Judge.

                                 Argued: January 26, 2016

                             Decided and Filed: May 11, 2016

             Before: COLE, Chief Judge; GILMAN and SUTTON, Circuit Judges.
                                   _________________

                                        COUNSEL

ARGUED: Jeffrey M. Harris, BANCROFT PLLC, Washington, D.C., for Appellant. Weili J.
Shaw, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Jeffrey M. Harris, Paul D. Clement, BANCROFT PLLC, Washington, D.C., for
Appellant. Weili J. Shaw, Mark B. Stern, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., Charles P. Wisdom, Jr., Tiffany Fleming, UNITED STATES ATTORNEY’S
OFFICE, Lexington, Kentucky, for Appellee. Stephen Ted Koprowski, Knoxville, Tennessee,
pro se.

        COLE, C.J., delivered the opinion of the court in which GILMAN, J., joined. SUTTON,
J. (pp 19–30), delivered a separate dissenting opinion.




                                              1
No. 14-5451                         Koprowski v. Baker                           Page 2


                                      _________________

                                           OPINION
                                      _________________

       COLE, Chief Judge. Plaintiff-Appellant Stephen Koprowski is a former federal prisoner
who was housed at Fort McCreary in Pine Knot, Kentucky. While imprisoned on November 23,
2009, Koprowski severely injured his back when he fell off a ladder while working in the food-
service area of the prison.     Koprowski alleges that various prison staff members were
deliberately indifferent to his serious medical needs in the wake of this injury. He sued these
individuals under the doctrine of Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), for, among other things, violating his Eighth Amendment rights.
The district court dismissed the claim on the ground that the Inmate Accident Compensation Act
(“IACA”), 18 U.S.C. § 4126(c), a workers’ compensation scheme that covers federal prisoners
injured during the course of their prison employment, is the exclusive means by which federal
prisoners may receive monetary compensation for employment-related injuries.

       We reverse. The Supreme Court has consistently reaffirmed its holding in Carlson v.
Green, 446 U.S. 14 (1980), that federal prisoners may bring Bivens claims under the Eighth
Amendment against federal prison officials. Joining the three other circuits to have considered
this issue, we conclude that the IACA does not displace such an action simply because the
alleged Eighth Amendment violation occurred in the context of the prisoner’s employment. See
Smith v. United States, 561 F.3d 1090 (10th Cir. 2009); Bagola v. Kindt, 131 F.3d 632 (7th Cir.
1997); Vaccaro v. Dobre, 81 F.3d 854 (9th Cir. 1996). We affirm the district court’s dismissal of
Koprowski’s other claims and remand for further proceedings.

                                      I. BACKGROUND

       On November 23, 2009, Koprowski was cleaning a fry hood in the food-service area of
the prison when he fell off a step ladder and landed on his back. Koprowski lost feeling in his
legs for a few minutes and experienced severe pain when he finally stood up. He had difficulty
walking for the next several days, and the intense pain persisted even while lying down.
No. 14-5451                          Koprowski v. Baker                             Page 3


       Koprowski alleges that the prison’s medical staff treated his injuries as minor and
temporary, thereby causing him unnecessary pain and further aggravating his condition. He says
the medical staff delayed taking x-rays and refused to perform a Magnetic Resonance Imaging
(“MRI”) scan, which would have shown that he had broken his back. Koprowski also claims
that prison staff denied him access to specialized care, surgery, and ambulatory aids. In one
instance, he claims, staff threatened to send him to solitary confinement unless he surrendered a
wheelchair he had been using; when he complied with their order to walk, the resulting pain and
fatigue caused him to be bedridden for several hours. Another time, Koprowski allegedly was
sent to a segregation unit—“the hole”—as punishment for being unable to walk to his work
assignment.

       About a week after his injury, when his pain had not abated, Koprowski’s back finally
was x-rayed.    The x-rays showed a wedge compression fracture of the L3 vertebra.                   A
subsequent x-ray taken in January 2010 showed that the fracture had worsened. Koprowski
alleges this injury resulted from his fall and has led to continued pain and permanent disability.

       Koprowski complained about the prison’s treatment of his injury through its
Administrative Remedy Procedure (“ARP”). He was also eligible to receive lost-time wages
through the IACA for the work he missed as a result of the injury, and to seek compensation
should he still have a “physical impairment” at the time of his release. See 28 C.F.R. § 301.101.

       In July 2011, Koprowski brought this Bivens suit against six prison officials, who are
defendants-appellees here. Most germane to this appeal, Koprowski alleges the defendants
violated his Eighth Amendment rights by acting with deliberate indifference to his serious
medical needs. The district court granted the defendants’ motion to dismiss, finding that the
IACA is the exclusive vehicle by which a federal inmate may receive compensation for injuries
suffered during the course of his employment in prison. The district court also dismissed
Koprowski’s other claims, brought under the First, Fifth, and Fourteenth Amendments.

       After the district court denied Koprowski’s post-trial motions, he timely appealed.
No. 14-5451                          Koprowski v. Baker                            Page 4


                                         II. ANALYSIS

A. Jurisdiction and Standard of Review

         As an initial matter, we must decide whether the defendants’ challenge is jurisdictional.
The district court dismissed Koprowski’s Eighth Amendment claim for lack of subject-matter
jurisdiction.   We disagree.   We have jurisdiction to adjudicate claims that arise under the
Constitution, including Koprowski’s Eighth Amendment claim.            See Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 66 (2001) (citing 28 U.S.C. § 1331). The relevant question here is
whether judicial relief is available to Koprowski for his claim. See Davis v. Passman, 442 U.S.
228, 244 (1979). We review the district court’s dismissal de novo, taking all well-pleaded
allegations in the complaint as true. Left Fork Mining Co. v. Hooker, 775 F.3d 768, 773 (6th Cir.
2014).

B. The Bivens Doctrine and the Eighth Amendment

         In Bivens, the Supreme Court held that an individual injured by a federal officer’s
violation of the Fourth Amendment may bring an action in federal court seeking money damages
from the officer. Bivens, 403 U.S. at 397. The Court held that the cause of action arose under
the Fourth Amendment itself, and that a judicially created remedy was necessary to give the
plaintiff a “remedial mechanism” to redress the violation of his constitutional right. Id. at 395–
97. The Court noted that creating a money-damages remedy for Fourth Amendment violations
did not involve any “special factors counseling hesitation in the absence of affirmative action by
Congress.” Id. at 396. But the Court also acknowledged that Congress could limit such actions
by creating “another remedy, equally effective in the view of Congress.” Id. at 397.

         The Supreme Court later extended the Bivens doctrine to allow the estate of a federal
prisoner to bring a money-damages suit against federal officers who violated his Eighth
Amendment right to be free from cruel and unusual punishment. Carlson, 446 U.S. at 18–23.
The prisoner in Carlson had died after an asthma attack due to prison officials being
“deliberately indifferent” to his “serious medical needs.” See id. at 16–17 & n.1 (citing Estelle v.
Gamble, 429 U.S. 97 (1976)). The Court reiterated its discussion from Bivens that a cause of
action for money damages arising directly under the Constitution could be defeated, either if
No. 14-5451                                Koprowski v. Baker                                   Page 5


“special factors counsel[] hesitation” or if “Congress has provided an alternative remedy.” Id. at
18–19. The Court found, however, that no “special factors” counseled against allowing the
claim because prison officials “do not enjoy such independent status in our constitutional scheme
as to suggest that judicially created remedies against them might be inappropriate,” and that
qualified immunity “provides adequate protection” against disruptions in their official duties
from these sorts of suits. Id. at 19.         The Court next considered whether the provision of the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(h), creating a cause of action against the
United States for intentional torts committed by federal law enforcement officers, displaced the
plaintiff’s Eighth Amendment claim. Carlson, 446 U.S. at 19–20. The Court found that “the
congressional comments accompanying [the Act] made it crystal clear that Congress views
FTCA and Bivens as parallel, complementary causes of action.”                           Id.    Based on these
considerations, the Court ultimately held that the plaintiff could pursue his Eighth Amendment
claim.

C. Availability of a Bivens Remedy to Koprowski

         Carlson provides the starting point for the case before us. A prisoner can state a claim
under the Eighth Amendment against federal prison officials who have been deliberately
indifferent to his serious medical needs. Carlson also provides, however, that Congress may
displace that right if a statutory scheme provides an alternative remedy. 446 U.S. at 18–19.
Defendants argue that two statutory schemes, the IACA and the ARP, do just that.

         1. The IACA

         The Supreme Court has not expressly addressed whether the IACA is meant to exclude a
prisoner’s ability to seek money damages from a prison official for a constitutional tort like the
one claimed by Koprowski. Three other circuits have addressed the question,1 and each of them
has come out the same way: The IACA does not displace an Eighth Amendment Bivens claim.
See Smith, 561 F.3d at 1102–03; Bagola, 131 F.3d at 637–45; Vaccaro, 81 F.3d at 857. These

         1
           We have held in three summary, unpublished cases that the IACA precludes any Eighth Amendment
claims arising from medical treatment related to a prison workplace injury. See Springer v. United States, 229 F.3d
1154, 2000 WL 1140767 (6th Cir. 2000) (table); Walls v. Holland, 198 F.3d 248, 1999 WL 993765 (6th Cir. 1999)
(table); Fraley v. Dep’t of Justice, 113 F.3d 1234, 1997 WL 225495 (6th Cir. 1997) (table). However, unpublished
opinions do not bind us. See 6 Cir. R. 32.1.
No. 14-5451                             Koprowski v. Baker                         Page 6


Circuits have noted the lack of a clear statement from Congress as to whether the IACA
displaces Bivens claims. Smith, 561 F.3d at 1102; Bagola, 131 F.3d at 639. They have found
that the IACA’s scheme does not adequately protect prisoners’ Eighth Amendment rights
because it does not deter unconstitutional conduct or provide a forum to address violations.
Smith, 561 F.3d at 1103; Bagola, 131 F.3d at 639, 642–45; see Vaccaro, 81 F.3d at 857. And
they saw no special factors to suggest that a Bivens remedy is inappropriate. Bagola, 131 F.3d at
642–44. We agree and hold that the IACA does not displace Koprowski’s Eighth Amendment
Bivens claim.

                a. Explicit Statement

       The first and potentially dispositive question in this case is whether Congress has spoken.
If Congress has explicitly stated in either the statute or the legislative history that the IACA is
meant to complement or to preclude a Bivens remedy, we will give effect to that intent. See Bush
v. Lucas, 462 U.S. 367, 378 (1983). Here, however, Congress is silent. Despite making
technical amendments to the IACA in 1988 and 2004, Congress made no express statement in
the text of the statute as to the interplay between the IACA and Bivens. Smith, 561 F.3d at 1101
n.12 (“The [IACA] was amended . . . without any Congressional comment on the relationship
between that Act and Bivens claims.”).         The parties have not pointed us to any relevant
legislative history in this regard, and apparently none exists. We presume Congress was aware
in 2004 of the Seventh and Ninth Circuits’ decisions allowing Bivens claims despite the IACA,
see Bagola, 131 F.3d 632; Vaccaro, 81 F.3d 854, and therefore Congress’s decision not to speak
on this issue might suggest some degree of acquiescence. See Cannon v. Univ. of Chi., 441 U.S.
677, 698–99 (1979) (“[O]ur evaluation of congressional action . . . must take into account its
contemporary legal context.”); Lorillard v. Pons, 434 U.S. 575, 580 (1978) (“Congress is
presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change.”).

       The closest we have to a direct statement from Congress is that it specified a cap on
damages that can be paid out under the IACA: “In no event may compensation for [workplace-
related] injuries be paid in an amount greater than that provided in” the Federal Employees’
Compensation Act (“FECA”), 5 U.S.C. 8101, et seq., the workers’ compensation system that
No. 14-5451                          Koprowski v. Baker                           Page 7


covers federal employees. 18 U.S.C. § 4126(c). But this statement merely begs the question of
which injuries fall within the scope of the IACA and therefore are subject to the cap. It is worth
noting, however, that the FECA specifically contemplates the possibility of an injured
government worker seeking compensation from someone other than the United States who is
also liable for the injury, which may include a Bivens claim against a fellow employee for a
violation of the injured worker’s constitutional rights. See 5 U.S.C. § 8132; Gustafson v. Adkins,
803 F.3d 883, 890 (7th Cir. 2015) (collecting cases reaching this result, including Bates v. Harp,
573 F.2d 930, 934–35 (6th Cir. 1978)).

       Thus, the IACA’s cross-reference to the FECA does not exclude the possibility that a
prisoner may have a cause of action against a prison official who injured him despite the
operation of the IACA. Instead, the cross-reference supports the notion that Congress may have
contemplated that the IACA and Bivens actions are complementary.

               b. The IACA’s Structure

       Without an explicit statement from Congress, we next look to the structure of the IACA
to determine whether it is an “alternative, existing process for protecting the [constitutional]
interest” at stake, thereby providing a “convincing reason for the Judicial Branch to refrain from
providing a . . . [Bivens] remedy in damages.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007)
(citing Bush, 462 U.S. at 378). In deciding whether the IACA is meant to displace Koprowski’s
Eighth Amendment Bivens claim, the slate is not blank. Two Supreme Court decisions lead us to
conclude that a Bivens action remains available to prison workers like Koprowski.

                      i. Precedent

       In United States v. Demko, 385 U.S. 149, 153 (1966), the Court “accept[ed] the prison
compensation law as an adequate substitute for a system of recovery by common-law torts,” and
held that prison workers’ exclusive remedy for common-law torts was the IACA. As such, the
IACA displaced any other common-law tort claims that could be brought against the United
States under the Federal Tort Claims Act, which otherwise allows for such claims. Id. In
coming to this conclusion, the Court recognized that workers’ compensation schemes (such as
the IACA) “were the offspring of a desire to give injured workers a quicker and more certain
No. 14-5451                            Koprowski v. Baker                         Page 8


recovery than can be obtained from tort suits based on negligence and subject to common-law
defenses to such suits.” Id. at 151 (emphasis added). Because the IACA and the FTCA protect
against the same sort of harm, the IACA displaces the FTCA. Id. at 152–53; see also Vaccaro,
81 F.3d at 857. Demko thus stands for the unremarkable proposition that the IACA and FTCA
are similar in the interests they protect.

        But Carlson, which was decided over a decade after Demko, expressly distinguishes
between common-law torts remedied by the FTCA and Eighth Amendment claims cognizable
under Bivens.     The Court analyzed the interests that the Eighth Amendment protects, as
compared to the work that the FTCA does, and concluded: “Plainly FTCA is not a sufficient
protector of the citizens’ constitutional rights . . . .” Carlson, 446 U.S. at 23; see also Bagola,
131 F.3d at 642 n.15. As such, the FTCA is not meant to displace Bivens actions, and the two
act in concert.

        Taken together, Demko and Carlson make clear that the IACA and FTCA operate in one
sphere (common-law torts), and Bivens operates in another (constitutional torts). Put another
way, we know from the Supreme Court that the IACA and FTCA are similar, whereas claims
under the FTCA and Bivens actions are dissimilar. Demko and Carlson thus lead us to conclude
that the IACA does not displace Bivens actions for prison workers.

                        ii. The Workings of the IACA

        Our own review of the IACA’s structure confirms this conclusion. The IACA authorizes
the Attorney General to promulgate regulations creating a workers’ compensation scheme for
federal prisoners who are injured during the course of their prison employment. See 18 U.S.C.
§ 4126(c); 28 C.F.R. § 301.101. After missing three consecutive days of work, prisoners are
paid 75 percent of their lost wages for any additional work missed. 28 C.F.R. § 301.203. If the
prisoner disagrees with the prison’s determination as to whether his injury was actually work-
related, he may appeal through the ARP—the Bureau of Prisons’ (“BOP”) general grievance
process. 28 C.F.R. § 301.205.

        If the prisoner’s injury creates a “physical impairment” that still exists at the time the
prisoner is released, then no earlier than 45 days before he is released the prisoner may file a
No. 14-5451                           Koprowski v. Baker                             Page 9


claim to recover additional compensation; the amount recoverable is specified in the
compensation schedule of the FECA, 5 U.S.C. § 8107. 28 C.F.R. § 301.314. The initial
determination on this claim is made by an examiner.            If the prisoner disagrees with the
examiner’s decision, he may seek an evidentiary hearing before an Inmate Accident
Compensation Committee. If still dissatisfied with the Committee’s decision, the prisoner may
further appeal to the Chief Operating Officer of the federal prison system. See 28 C.F.R. §§
301.303–.315. At no point during the process is blame assigned.

       The no-fault nature of the IACA strongly suggests that it is an inadequate alternative to a
Bivens action. As the Seventh Circuit neatly put it: The IACA does not “provide[] a forum
where the allegedly unconstitutional conduct would come to light.” Bagola, 131 F.3d at 643.
The prison-workers’ compensation scheme thus looks strikingly different from the alternative
schemes the Supreme Court considered in Bush and Schweiker, two cases on which the
defendants heavily rely. In Bush, the plaintiff, a NASA employee who alleged he had been
demoted for publicly criticizing his superiors, was protected by an “elaborate” and
“comprehensive” civil service system. Bush, 462 U.S. at 385–87. This system allowed the
plaintiff to litigate fully his First Amendment challenge to NASA’s employment action. Id.
Similarly, the plaintiffs in Schweiker, who alleged that government officials had violated their
due process rights by improperly denying their Social Security disability benefits, were able to
expose publicly the actions of those officials, leading Congress to amend the disability benefits
program specifically to address due process concerns. Schweiker v. Chilicky, 487 U.S. 412, 415–
17 (1988).

       The IACA, by contrast, is a no-fault compensation scheme. It presupposes recovery
without blame—after all, it is the Inmate Accident Compensation Act. Under the scheme, all that
matters is the nature of the injury, not the underlying conduct. Thus, “the conduct that caused
the work-related injury is not relevant and likely will not be exposed by the claim evaluation
process.” Bagola, 131 F.3d at 644.       As a result, the IACA, acting alone, “not only insulates
prison officials who violate an individual’s constitutional rights from individual liability, . . . it
also shrouds their potentially unconstitutional conduct within a no-fault compensation system.”
Id. For this reason, the Tenth Circuit followed the reasoning of Bagola and noted, “there is very
No. 14-5451                                  Koprowski v. Baker                                      Page 10


little deterrent effect for constitutional harms within the [IACA], and there is no alternative
forum where the alleged constitutional violation could be addressed.” Smith, 561 F.3d at 1103.

         The lack of accountability is important when determining whether an alternative scheme
protects the constitutional interest at stake, thereby precluding a Bivens remedy. “The purpose of
Bivens is to deter individual federal officers from committing constitutional violations.”
Malesko, 534 U.S. at 70. “It is almost axiomatic that the threat of damages has a deterrent effect,
surely particularly so when the individual official faces personal financial liability.” Carlson,
446 U.S. at 21 (citation omitted). That is why, in FDIC v. Meyer, 510 U.S. 471, 485 (1994), the
Supreme Court held that a plaintiff cannot bring a Bivens action against a federal agency: the
deterrent effect would be lost if a plaintiff could sue the relevant agency rather than the
individual officer. By contrast, in Minneci v. Pollard, 132 S. Ct. 617, 623–25 (2012), the
Supreme Court held that the availability of state tort actions is sufficiently adequate to preclude a
Bivens remedy against employees of a privately operated federal prison because prisoners can
still bring money-damages suits against those employees. See id. at 625 (“[S]tate tort law
remedies provide roughly similar incentives for potential defendants to comply with the Eighth
Amendment . . . .”).

         In contrast, the IACA does not adequately deter unconstitutional conduct because prison
officials have no skin in the game under the workers’ compensation scheme.2 Of course, the
prison officials have qualified immunity to shield them. Still, “the threat of litigation and
liability will adequately deter federal officers for Bivens purposes no matter that they may enjoy
qualified immunity, are indemnified by the employing agency or entity, or are acting pursuant to
an entity’s policy.” Malesko, 534 U.S. at 70 (citations omitted).




         2
          Furthermore, not only would displacing a Bivens remedy in these circumstances fail to deter
unconstitutional conduct, it could potentially create a moral hazard. Once again, federal prison officials are
generally subject to Eighth Amendment money damages claims under Carlson. If we were to decide that the IACA
displaces this otherwise-available Bivens remedy, we would have effectively carved out one area of prison life
where personal liability cannot attach. The message to prison officials would be clear: if you want to harm a
prisoner and get away scot-free, just do it while he’s at work. Congress can tell us that that was its intent but, absent
such an explicit statement, this troubling result suggests to us that the IACA as currently designed would not
adequately protect prisoners’ Eighth Amendment rights.
No. 14-5451                         Koprowski v. Baker                            Page 11


       At base, an Eighth Amendment money-damages suit and a run-of-the-mill IACA claim
based on an accident in the workplace are fundamentally different. The two types of actions
seek different damages for different harms arising under different theories from different
defendants. See Vaccaro, 81 F.3d at 857. In an IACA claim, a prisoner seeks workers’
compensation from the employer (the United States) for an on-the-job injury, similar to the type
any employee could suffer in the course of her employment. An Eighth Amendment action
seeks something significantly different: compensation from a prison official for unnecessary pain
that can be inflicted only on a prisoner by such an official. See Bagola, 131 F.3d at 645. Absent
a Bivens remedy, a prisoner who is subject to such a gratuitous infliction of injury in the
workplace could not seek redress for that constitutional injury. That prisoner can receive IACA
damages for time missed from work, and for any permanent disability upon release. But the
quintessential aspect of an Eighth Amendment claim—cruel and unusual punishment—would go
unaddressed. That is not to say that the remedy offered by an alternative scheme must “be
perfectly congruent” to a Bivens remedy, Minneci, 132 S. Ct. at 625, or offer the same amount of
compensation, see Schweiker, 487 U.S. at 425. But for an alternative process to be adequate, it
must “protect the constitutional interests at issue.” Minneci, 132 S. Ct. at 624. This, the IACA
does not do.

       One final point about workers’ compensation schemes helps to put all of this into context.
Such schemes typically cover only accidents and do not prevent workers from bringing suit for
intentional torts they suffer in the workplace. See Restatement (Third) of Torts: Liability for
Physical and Emotional Harm § 1, comment a (2016) (“The exclusivity of the workers’-
compensation system is limited, however, to accidental injuries; it does not apply if the employer
has committed an intentional tort against the employee.”). Additionally, workers’ compensation
laws generally recognize that certain wrongs can be remedied outside of the scheme without
disrupting the scheme’s effect. Id. The existence of the IACA, therefore, does not, in and of
itself, suggest that prisoners should be prevented from seeking redress when prison officials go
beyond mere negligence and violate the prisoners’ Eighth Amendment rights.
No. 14-5451                         Koprowski v. Baker                           Page 12


       2. The ARP

       The defendants also contend that prisoners have an additional avenue for relief to
vindicate their constitutional rights: the ARP, BOP’s grievance process that “allow[s] an inmate
to seek formal review of an issue relating to any aspect of his [or] her own confinement,”
including allegations of unconstitutional conduct by prison officials. 28 C.F.R. § 542.10(a).
Once the ARP’s grievance procedure has been completed, the inmate may file suit in federal
court seeking injunctive relief. See Malesko, 534 U.S. at 74.

       But the ARP, which has been in effect for nearly four decades, see 44 Fed. Reg. 62,248–
51 (Oct. 29, 1979), did not affect the Supreme Court’s conclusion in Carlson, nor the decisions
of the Seventh, Ninth, and Tenth Circuits. More to the point, since Carlson, the Supreme Court
has explicitly held that the ARP does not displace a Bivens remedy because it is not an effective
substitute for a money-damages action.      McCarty v. Madigan, 503 U.S. 140, 151 (1992),
superseded in part on other grounds by statute, Prison Litigation Reform Act of 1995, Pub. L.
104-134, 110 Stat. 1321–71. Instead, in McCarty the Supreme Court once again reaffirmed
Carlson’s holding that prisoners may bring Eighth Amendment claims against prison officials
despite the existence of the ARP. See id.

       3. Special Factors

       Having determined that the IACA is not an adequate alternative process to protect a
prisoner’s Eighth Amendment rights, the final question is whether any “special factors counsel[]
hesitation” against allowing a Bivens suit to proceed. Wilkie, 551 U.S. at 550 (quoting Bush, 462
U.S. at 378).    These special factors exist to help the court “make the kind of remedial
determination that is appropriate for a common law tribunal.” Id. (quoting Bush, 462 U.S. at
378). That is, the court must “weigh[] reasons for and against” allowing a Bivens action in this
context. Id. at 554.

       In Carlson, the Supreme Court explicitly found that no special factors suggested that an
Eighth Amendment Bivens remedy would be inappropriate. 446 U.S. at 19. First, federal prison
officials “do not enjoy such independent status in our constitutional scheme as to suggest that
judicially created remedies against them might be inappropriate.”        Id.   Second, qualified
No. 14-5451                            Koprowski v. Baker                         Page 13


immunity protects federal prison officials such that the availability of a Bivens remedy would not
overly interfere with their ability to do their jobs. Id.

        The defendants want to re-litigate the second point, but Carlson has already closed the
door on their arguments. Even though subjecting prison officials to personal liability through
Bivens suits “might inhibit” prison officials in “their efforts to perform their official duties,”
qualified immunity “provides adequate protection.” Id. at 19. The Supreme Court’s conclusion
has become even more pertinent over time because the qualified-immunity doctrine has
expanded to give more protection to government officers. See Bagola, 131 F.3d at 638 & n.12
(contrasting the pre-Carlson case of Butz v. Economou, 438 U.S. 478 (1978), with the later case
of Harlow v. Fitzgerald, 457 U.S. 800 (1982)). Furthermore, the defendants have not presented
any evidence of their concerns actually manifesting themselves in the three circuits that already
allow Bivens suits despite the existence of the IACA.

    In sum, the defendants have not put forth any new special factors for us to consider. And we
find no special factors that require us to preclude Bivens relief here.

        4. The Dissent

        The dissent notes that, since Carlson, the Supreme Court has increasingly expressed
skepticism about expanding the Bivens doctrine to new situations. See, e.g., Schweiker, 487 U.S.
at 421; see also Malesko, 534 U.S. at 75 (Scalia, J., concurring). But this case does not present
an opportunity to expand Bivens. Cf., e.g., Engel v. Buchan, 710 F.3d 698, 705 (7th Cir. 2013)
(extending Bivens into the “new” context of claims alleging violations of Brady v. Maryland, 373
U.S. 83 (1963)). For more than 30 years, the Supreme Court has repeatedly affirmed the holding
of Carlson: prisoners may bring money-damages actions under the Eighth Amendment against
federal prison officials.

        In Malesko, 534 U.S. at 71–72, for example, the Supreme Court declined to allow Bivens
suits against private corporations operating halfway houses under contract with the BOP, but still
recognized that “a federal prisoner in a BOP facility . . . may bring a Bivens claim against the
offending individual officer.” Similarly, in Minneci, 132 S. Ct. at 623–24, the Supreme Court
held that a prisoner could not bring an Eighth Amendment claim against employees of a
No. 14-5451                               Koprowski v. Baker                     Page 14


privately operated federal prison, but in so doing reaffirmed Carlson by distinguishing the
reasons why a prisoner in a prison operated by the federal government could bring such a claim.
Here, Koprowski’s claim is the same as the claim that the Supreme Court allowed in Carlson: an
Eighth Amendment claim against officers working in a prison run by the federal government.

        The dissent looks at this case from the opposite direction. It presumes no Bivens remedy
is available despite Carlson, and then asks whether we should create one, with a heavy
presumption against doing so. But only the Supreme Court may overrule its own precedents, and
we are bound by its decision “until such time as the Court informs [us] that [we] are not.” Hicks
v. Miranda, 422 U.S. 332, 345 (1975) (internal quotation marks and citation omitted). Although
some of Carlson’s analytical framework has been altered by later decisions, its core holding
allowing just this sort of suit binds us. See Minneci, 132 S. Ct. at 623–24.

        In addition to presuming that no Bivens remedies should exist, the dissent’s “special
factors” analysis presumes that Congress balanced the policy considerations at play and intended
for the IACA to displace Carlson. We agree that Congress is the better institution for balancing
competing policy concerns, and that is why we defer to its expressed judgments. See Wilkie, 551
U.S. at 562. But, as we’ve explained, Congress’s intent to displace Bivens actions with the
IACA is not apparent. Moreover, if Congress’s intent were clear, we would not need to engage
in the special-factors analysis at all.

D. Absolute Immunity

        Beyond disagreeing with our Bivens analysis, the dissent treks an even more extreme
path. Relying on Hui v. Castaneda, 559 U.S. 799 (2010), the dissent argues that the IACA not
only displaces the Eighth Amendment Bivens claim, but also grants prison officials absolute
immunity from suit. In Hui, the Supreme Court held that a specialized provision within the
FTCA making certain remedies against the United States “exclusive of any other civil action or
proceeding by reason of the same subject-matter against” certain public-health employees,
42 U.S.C. § 233(a), effectively grants absolute immunity to those specific public-health
employees. See Hui, 559 U.S. at 805–06. The Court looked to “[t]he breadth of the words
No. 14-5451                                Koprowski v. Baker                                   Page 15


‘exclusive’ and ‘any,’” as well as the “inclusive reference to all civil proceedings arising out of
‘the same subject-matter’” to reach this conclusion. See id. at 806.

        Before addressing the merits of this argument, we note that neither side has raised
absolute immunity as an issue in this case.3 “The premise of our adversarial system is that
appellate courts do not sit as self-directed boards of legal inquiry and research.” Carducci v.
Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.). Instead, “we rely on the parties to frame
the issues for decision and assign to courts the role of neutral arbiter of matters the parties
present.” Greenlaw v. United States, 554 U.S. 237, 243 (2008). “Only in exceptional cases or
particular circumstances or when the rule would produce a plain miscarriage of justice do we
exercise our discretion to entertain arguments not raised before the district court.” Rice v.
Jefferson Pilot Fin. Ins. Co., 578 F.3d 450, 454 (6th Cir. 2009) (internal citation and quotation
marks omitted). Accordingly, we would decline to address the merits of the absolute-immunity
issue even if the dissent were correct on the merits. That said, we disagree with the dissent.

        The IACA is a bare-bones statute devoid of the sweeping language of exclusivity present
in 42 U.S.C. § 233(a), the statute at issue in Hui. It provides only that the Attorney General may
promulgate regulations to compensate inmates for workplace injuries. See 18 U.S.C. § 4126.
There is no indication that Congress intended to grant absolute immunity to prison officials
through the IACA. Cf. Carlson, 446 U.S. at 20 (“Congress follows the practice of explicitly
stating when it means to make FTCA an exclusive remedy.” (citing, among other statutory
provisions, 42 U.S.C. § 233(a))). “Since the statute on its face does not provide for any
immunities, we would be going far to read into it an absolute immunity . . . .” Malley v. Briggs,
475 U.S. 335, 342 (1986).

        Having no statutory support, the dissent instead relies on the Supreme Court’s use of the
word “exclusive” in Demko. First, as we have already explained, Demko was discussing a
different type of injury. We agree with the dissent that the IACA is “the exclusive remedy” for
prisoners seeking compensation from the United States for common-law torts suffered in the
course of their workplace injuries; those prisoners may not also bring claims under the FTCA.

        3
         The defendants asserted a defense of qualified immunity in the district court but have not raised it here.
(See Motion to Dismiss, R. 60-1, PageID 1999–2001.)
No. 14-5451                          Koprowski v. Baker                         Page 16


See Demko, 385 U.S. at 152; Vaccaro, 81 F.3d at 857; cf. Saltsman v. United States, 104 F.3d
787, 790 (6th Cir. 1997) (similarly holding that the “exclusive” nature of the FECA’s workers’
compensation scheme precludes a simultaneous action against the United States under the
FTCA). But this statement from the Supreme Court regarding the interplay between the IACA
and the FTCA with respect to claims against the United States fails to demonstrate that Congress
intended to grant absolute immunity to federal prison officials.

       Moreover, the use of the word “exclusive” in one of the promulgated regulations does not
alter our view. The regulation cited by the dissent, 28 C.F.R. § 301.319, speaks specifically to
the exclusivity of the IACA with respect to claims that could otherwise be brought under the
FTCA. That regulation cites Demko for the proposition that any prisoner who has an IACA
claim is “barred from recovery under the [FTCA].” Id. Thus, the regulations do no more than
reiterate the holding of Demko.

       Finally, the official asserting absolute immunity has the burden of showing that immunity
is justified for any particular function, and “[t]he presumption is that qualified immunity is
sufficient to protect government officials in the exercise of their duties.” Antoine v. Byers &
Anderson, Inc., 508 U.S. 429, 432 n.4 (1993) (citing Burns v. Reed, 500 U.S. 478, 486–87
(1991)). To hold that executive officers have absolute immunity, despite making no argument
for it and having no statement from Congress intending such a result, would undermine the
historically limited application of absolute immunity. We respectfully decline the dissent’s
unsolicited invitation to travel down such a path.

E. Other Constitutional Claims

       Having found that Koprowski’s Eighth Amendment claim should not have been
dismissed, we briefly address the dismissal of Koprowski’s other Bivens claims alleging
violations of his First, Fifth, and Fourteenth Amendment rights. We affirm the district court’s
dismissal of these claims.

       Korprowski alleges that the defendants retaliated against him for complaining about his
medical care, thereby violating his First Amendment rights. See Thaddeus-X v. Blatter, 175 F.3d
378, 394 (6th Cir. 1999) (en banc). The district court dismissed this claim because Koprowski
No. 14-5451                          Koprowski v. Baker                             Page 17


had failed to exhaust his administrative remedies. See 42 U.S.C. § 1997e(a). Koprowski makes
vague assertions in this appeal that he could not exhaust his administrative remedies because he
feared further retaliation, but his repeated informal complaints to prison staff about his medical
care suggest otherwise. See Sarah v. Bradley, 66 F. App’x 562, 563 (6th Cir. 2003). Because
Koprowski has not shown a reason to excuse his failure to exhaust his administrative remedies,
we affirm the dismissal of this claim.

       Koprowski’s complaint also alleges that the defendants’ inadequate medical care violated
his due process and equal protection rights under the Fifth and Fourteenth Amendments.
Koprowski has not specifically addressed these claims on appeal, and has therefore forfeited
them. See Radvansky v. City of Olmstead Falls, 395 F.3d 291, 311 (6th Cir. 2005).

                      III. DISCOVERY AND POST-TRIAL MOTIONS

       After the district court dismissed Koprowski’s claims, he filed: (1) a motion to alter or
amend the judgment under Federal Rule of Civil Procedure 59(e), raising discovery-related
issues, and (2) motions to amend his complaint pursuant to Federal Rule of Civil Procedure
15(a). The district court denied these motions. We review these decisions for an abuse of
discretion. Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 522 (6th Cir. 1999).

       First, the district court did not abuse its discretion in denying Koprowski’s motion to
amend his complaint to add claims after judgment had already been entered against him. When a
motion to amend a complaint follows a judgment against the plaintiff, the need to protect the
finality of judgments requires that the plaintiff “shoulder a heav[y] burden” and “provide a
compelling explanation” to reopen the case. See Leisure Caviar, LLC v. U.S. Fish & Wildlife
Serv., 616 F.3d 612, 616–17 (6th Cir. 2010). The district court found that the claims Koprowski
sought to add were based on facts he had known both when he filed his original complaint and
when he twice amended the complaint during the litigation.         We agree that there was no
compelling reason to allow a post-judgment amendment to the complaint under these
circumstances.

       Second, Koprowski’s Rule 59(e) motion for reconsideration renewed a previously raised
argument that the defendants had failed to serve him with a copy of the medical records that
No. 14-5451                         Koprowski v. Baker                            Page 18


were attached to the defendants’ motion to dismiss.       On reconsideration, the district court
described defense counsel’s actions in failing to turn over these documents as “disconcerting,”
and concluded that defense counsel had “acted improperly” in certifying that he had served those
records when in fact he had not. Nevertheless, the district court denied the Rule 59(e) motion
because Koprowski’s claims had been dismissed on purely legal grounds, and therefore the
failure to turn over the records did not prejudice his case.      Given our decision here that
Koprowski’s Eighth Amendment claim is legally viable, we leave it to the district court on
remand to determine the effect of the government’s failure to serve these documents.

                                      IV. CONCLUSION

       We reverse the dismissal of Koprowski’s Eighth Amendment Bivens claim. The IACA
does not displace this otherwise available claim just because the alleged unconstitutional conduct
occurred in the context of a prison workplace injury. We affirm the dismissal of Koprowski’s
other claims. Finally, we remand the case for further proceedings consistent with this opinion.
No. 14-5451                           Koprowski v. Baker                            Page 19


                                       _________________

                                            DISSENT
                                       _________________

       SUTTON, Circuit Judge, dissenting.         Today’s case asks whether a prisoner has an
implied right of action to obtain money damages for an Eighth Amendment violation under
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), even when an exclusive
workers’ compensation statute covers those same injuries. The court says yes; I respectfully say
no.   The Supreme Court’s consistent skepticism of implied rights of action of this sort,
exemplified by its rejection of every such claim since 1980, together with the exclusive nature of
this workers’ compensation regime, leaves no room for this claim.

                                                 I.

       Courts ask two questions in this context: Does an implied right of action under Bivens
exist? If so, are the defendants nevertheless “immune from suit”? Hui v. Castaneda, 559 U.S.
799, 807 (2010).      I would hold that no implied right of action exists in the workers’
compensation context, and that even if it did these defendants remain immune from suit.

                                                 A.

       This issue straddles two judicial eras—one that embraced implied rights of action and
one that does not. In the first era, the Court did not hesitate to infer a private right of action to
vindicate a statutory violation, whether the statute provided a cause of action or not. See, e.g.,
J.I. Case Co. v. Borak, 377 U.S. 426, 433–34 (1964). It did the same for federal constitutional
violations in Bivens. After Bivens, a Fourth Amendment case, the Court inferred a right of action
for some Fifth Amendment violations, see Davis v. Passman, 442 U.S. 228, 248–49 (1979), and
some Eighth Amendment violations, see Carlson v. Green, 446 U.S. 14, 18–23 (1980).

       But the Court has grown wary of implied rights of action over the last three decades.
That has been true of statutory cases. See Alexander v. Sandoval, 532 U.S. 275, 287 (2001); see
also Stoneridge Inv. Partners, LLC v. Sci.-Atlanta, Inc., 552 U.S. 148, 164–65 (2008); Gonzaga
Univ. v. Doe, 536 U.S. 273, 287 (2002). And that has been especially true of constitutional
No. 14-5451                          Koprowski v. Baker                            Page 20


cases. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 67 n.3 (2001). Since 1980, the Court has
rejected every effort—“more than a dozen” by one count, Vance v. Rumsfeld, 701 F.3d 193, 198
(7th Cir. 2012) (en banc)—“to extend Bivens liability to any new context or new category of
defendants.” Malesko, 534 U.S. at 68. As that track record suggests, the Court sees implied
constitutional rights of action as “unjustified” in “most instances.” Wilkie v. Robbins, 551 U.S.
537, 550 (2007).

       In both eras, the Court looked to the same two considerations. A Bivens action may not
proceed if (1) “any alternative, existing process for protecting the interest [of the plaintiff]”
exists or (2) “special factors counsel[]” against applying Bivens. Id. (quotation omitted); see
Carlson, 446 U.S. at 18–19. What changed was a “presumption in favor of a Bivens-like
remedy,” which has “long since been abrogated.” Vance, 701 F.3d at 198. Under the former
regime, the Court denied a Bivens remedy only if the “defendants show that Congress has
provided an alternative remedy which it explicitly declared to be a substitute for recovery
directly under the Constitution and viewed as equally effective.” Carlson, 446 U.S. at 18–19.
Ever since Carlson in 1980, any requirement that Congress “explicitly” declare that other
avenues of relief are an “equally effective” “substitute” for a Bivens action has disappeared. See,
e.g., Minneci v. Pollard, 132 S. Ct. 617, 621–23 (2012). Instead of an inquiry that makes it
difficult to deny a private right of action (and presumes the existence of one), the current inquiry
makes it difficult to find a private right of action (and presumes the absence of one). The new
inquiry is not the same as the old one, as the case outcomes from the last thirty-six years
demonstrate.

       All of this explains why the pre-1981 outcomes tug in one direction, and the post-1980
outcomes pull in the other. Under the Court’s current test, the one that governs today, we are left
to answer these questions:     Is there “any alternative, existing process” for protecting the
plaintiff’s interests? And are there any “special factors” that counsel against applying Bivens?
Wilkie, 551 U.S. at 550 (quotation omitted). In answering the first question, we do not require,
as the Court once seemed to require, that Congress explicitly state that any alternative remedy
amounts to an equally effective substitute. That is what I take the Sixth Circuit cases to be
doing, see Left Fork Mining Co. v. Hooker, 775 F.3d 768, 774 (6th Cir. 2014), including all of
No. 14-5451                          Koprowski v. Baker                            Page 21


the unpublished ones that reject a private right of action in this precise area, see Springer v.
United States, 229 F.3d 1154 (6th Cir. 2000); Walls v. Holland, 198 F.3d 248 (6th Cir. 1999);
Fraley v. Dep’t of Justice, 113 F.3d 1234 (6th Cir. 1997); cf. Schoor v. Thornburgh, 983 F.2d
1068 (6th Cir. 1992).

       Alternative avenue of relief. The first question, then, is whether alternative forms of
relief exist. When Congress has paid “careful attention” to the plaintiff’s injury by creating a
process that provides “an avenue for some redress” of the alleged injury, the courts will not infer
a Bivens action. Malesko, 534 U.S. at 69; Schweiker v. Chilicky, 487 U.S. 412, 423 (1988). In
these instances, “bedrock principles of separation of powers” show that “Congress expected the
Judiciary to stay its Bivens hand” and instead apply the statutory remedy. Malesko, 534 U.S. at
69; Wilkie, 551 U.S. at 554.

       If ever there were a pertinent alternative form of relief, it would be the Inmate Accident
Compensation Act, which creates a workers’ compensation system for federal inmates. The Act
compensates “inmates or their dependents for injuries suffered . . . in any work activity in
connection with the maintenance or operation of the institution in which the inmates are
confined.” 18 U.S.C. § 4126(c)(4). It pays for actual injuries and for lost-time wages. 28 C.F.R.
§ 301.101. It awards money regardless of whether inmates prove that the prison officials were at
fault. And it casts a wide net, covering every injury “proximately caused” by a work assignment,
id. § 301.102(a), and all injuries resulting from the “improper medical treatment of a work-
related injury,” id. § 301.301(b).

       The Act also establishes an “extensive and comprehensive review process,” which is
“precisely the kind of remedial structure that precludes a judicially-created remedy.” Left Fork,
775 F.3d at 775. After the federal employer makes its initial compensation determination (using
“all [of the] available evidence,” 28 C.F.R. § 301.305), the inmate has the right to an in-person
appeal before a committee, id. § 301.306(b). In the appeal, the inmate may submit additional
evidence, call witnesses, cross-examine the government’s witnesses, and be represented by
counsel. Id.; see id. §§ 301.309–.310. If the inmate remains dissatisfied with the outcome, he
may appeal to the corporation’s Chief Operating Officer. Id. § 301.313. And if all else fails, he
may seek review in federal court. See 5 U.S.C. §§ 701–706.
No. 14-5451                          Koprowski v. Baker                           Page 22


       In the words of the Supreme Court, the “comprehensive” system established by the Act
creates an “exclusive” and “adequate substitute for a system of recovery by common-law torts.”
United States v. Demko, 385 U.S. 149, 152–53 (1966). If those words sound pertinent to the
question at hand, that is because Demko involved a case materially identical to this one. At stake
in Demko was whether the Act’s remedies were exclusive and thus precluded a separate lawsuit
under the Federal Tort Claims Act. The Court held that the Act’s remedies for work-related
injuries were exclusive, regardless of whether a claimant might obtain more or even better relief
under the Federal Tort Claims Act. Just so here.

       That’s not the only suggestion—in truth directive—the Court gives us. From the Court’s
mouth to our ears, the “analysis” in the Federal Tort Claims Act of an alternative enforcement
regime “guides [the] analysis” in the Bivens context. Chappell v. Wallace, 462 U.S. 296, 299
(1983). What precludes negligence actions against the government thus should preclude Bivens
actions against individual officials. See United States v. Stanley, 483 U.S. 669, 681, 683–84
(1987). Because Demko establishes that the Act precludes claims under the Federal Tort Claims
Act, the Act precludes claims under Bivens. Else, this workers’ compensation statute would
preclude an express congressional cause of action but not a judicially implied one. That’s
precisely what Wallace and Stanley prevent. Just as the Act excludes claims under the Federal
Tort Claims Act (a regime designed to compensate for common law torts), it excludes Bivens
actions (a regime designed to compensate for constitutional torts).

       That’s all one needs to know to resolve this case. The rest is gravy.

       But gravy there is. In addition to the remedies supplied by the Act, the Bureau of
Prisons’ remedial mechanisms and the option of an injunction action gave Koprowski a way to
halt unconstitutional (or other wrongful) prison-official conduct. Malesko, 534 U.S. at 74; see
Ex parte Young, 209 U.S. 123 (1908); 28 C.F.R. § 542.10(a). These alternatives, according to
the Supreme Court, allow inmates to stop “allegedly unconstitutional actions and policies” and to
bring those ongoing ones “to the attention of the [Bureau].” Malesko, 534 U.S. at 74. Nor are
these options theoretical. Koprowski used them to help obtain an MRI in this case.
No. 14-5451                          Koprowski v. Baker                              Page 23


       Taken together, these alternatives allow an injured inmate to receive money for the injury
and order the officials to obey the Constitution, demonstrating that Congress paid “careful
attention” to this precise injury. Schweiker, 487 U.S. at 423. They also offer injured inmates
extensive review procedures, which further “safeguard[]” their rights. Id. at 425.

       Special factors. That brings me to the second inquiry: whether “special factors” counsel
against implying a constitutional right of action. Even if the Act’s regime and the Bureau’s
administrative mechanisms somehow do not constitute alternative remedies, “special factors”
counsel against applying Bivens. This inquiry “relate[s] not to the merits of the particular
remedy, but to the question of who should decide whether such a remedy should be provided.”
Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985) (Scalia, J.) (quotation omitted).
In addressing this consideration, courts “weigh[] reasons for and against the creation of a new
cause of action, the way common law judges have always done.” Wilkie, 551 U.S. at 554. In the
workers’ compensation context—involving “a host of considerations that must be weighed and
appraised,” Bush v. Lucas, 462 U.S. 367, 380 (1983) (quotation omitted)—Congress is better
suited than the courts to craft and manage the remedies for an inmate’s work-related injuries.

       Congress weighed the competing policy concerns, and it chose to establish a quid pro quo
system as an exclusive substitute for tort relief. It substituted no-fault recovery in exchange for
no private rights of action, Bivens included. Especially in this prison workers’ compensation
statute, where Congress accounted for “the special need of [this] class of prisoners” and the
“differing circumstances of prisoners and nonprisoners,” Demko, 385 U.S. at 152–53, we should
respect Congress’s decision. Even if inadequate in Koprowski’s eyes (or for that matter judicial
eyes), the federally prescribed remedial system indicates that Congress made a judgment about
the type of relief it wants inmates injured on the job to recover. It’s relief under the workers’
compensation regime and the Bureau’s remedial mechanisms, not relief under Bivens.

                                                 B.

       Koprowski’s Bivens claim fails for a related but independent reason. “[C]ommon law or
statutory immunities” may, and indeed frequently do, “bar[]” Bivens actions. Al-Zahrani v.
Rodriguez, 669 F.3d 315, 319 (D.C. Cir. 2012).
No. 14-5451                         Koprowski v. Baker                            Page 24


       Hui v. Castaneda, 559 U.S. 799 (2010), shows why. Some federal Public Health Service
officials allegedly violated a plaintiff’s Eighth Amendment rights, as here, while he was in
federal custody, as here. Id. at 802–03. To defend against the plaintiff’s Bivens/Carlson claim,
the federal officials argued that a statute that made the remedy against the United States
exclusive precluded the Bivens claim. See 42 U.S.C. § 233(a). The Court agreed. It did not
address whether an implied cause of action under Bivens/Carlson existed for that type of Eighth
Amendment violation. Hui, 559 U.S. at 807–08 & n.6. It instead held that, even if one existed,
the exclusivity provision in the statute immunized the federal officials from any potential Bivens
cause of action. Id. at 805–08.

       There’s no escaping Hui’s lesson or its application to Koprowski. A statute that provides
an exclusive remedy against some entity other than the federal officials immunizes them from
Bivens liability, even when a constitutional implied right of action otherwise exists. And the
Inmate Accident Compensation Act provides just that kind of remedy. The Supreme Court
already has explained that the Act is “the exclusive remedy to protect . . . injured federal
prisoners” for work-related injuries.   Demko, 385 U.S. at 152.       The Act’s regulations, no
surprise, say the same thing. They describe the Act as the “exclusive remedy in the case of [an
inmate’s] work-related injury.” 28 C.F.R. § 301.319. And exclusivity is of course a critical
feature—perhaps the defining feature—of all workers’ compensation systems. The point is to
create a trade-off, where inmates get guaranteed (no-fault) coverage, and the government gets
freedom from further liability. The Act thus immunizes the prison officials from lawsuits
relating to the same work-related injuries no less than the Act in Hui. See Hui, 559 U.S. at 805–
06.

       Other workers’ compensation regimes, and the principles that undergird them, confirm
this conclusion. When workers’ compensation statutes are “exclusive,” as they usually are, that
means they grant “immunity” from lawsuits relating to work-related injuries. See, e.g., WMATA
v. Johnson, 467 U.S. 925, 932–33 (1984). They need not use the word “immunity” to have an
immunizing effect. When exclusive, they “grant [] immunity” from “tort actions that might yield
damages many times higher than awards payable under workers’ compensation schedules.” Id.
No. 14-5451                          Koprowski v. Baker                            Page 25


at 932; Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 547 U.S. 651, 655 (2006); see Hui,
559 U.S. at 805–06.

       Nothing in this workers’ compensation statute makes any exceptions for Bivens actions.
Some statutes, by contrast, do just that, say by carving out actions “brought for a violation of the
Constitution of the United States.” E.g., 28 U.S.C. § 2679(b)(2)(A). But this one doesn’t do
anything of the sort.     “[W]ithout specific legislation to that effect,” we shouldn’t create
“exceptions to [the] system” ourselves. Johansen v. United States, 343 U.S. 427, 441 (1952); see
Demko, 385 U.S. at 151. The “general rule [of] exclusivity” thus applies, id., providing an
independent ground for rejecting this Bivens claim.

                                                II.

       Koprowski’s arguments on the other side of the ledger come up short.

       Carlson v. Green? He puts considerable weight on the Court’s 1980 Carlson decision—
more, it turns out, than it can bear. Carlson held that an inmate’s estate could bring a Bivens
action against prison officials under the Eighth Amendment. 446 U.S. at 16 & n.1, 19. But it did
not address whether an “exclusive” statute provided the defendants with immunity, making it
“inapposite” to cases like this one. Hui, 559 U.S. at 807–08. Nor did it establish a categorical
rule that Bivens applies to all Eighth Amendment claims, e.g., Minneci, 132 S. Ct. at 623
(rejecting Bivens claim for an Eighth Amendment violation), or have anything to do with the
special context of the prison workers’ compensation system, meaning it is not dispositive of this
case. Cf. Meshal v. Higgenbotham, 804 F.3d 417, 423 (D.C. Cir. 2015).

       Carlson, it’s true, contains what might seem like helpful dictum. An implied right of
action, Carlson said, “may be defeated” by an express statute only when the “defendants show
that Congress has provided an alternative remedy which it explicitly declared to be a substitute
for recovery directly under the Constitution and viewed as equally effective.” 446 U.S. at 18–19.
But both parties to this case agree that this dictum no longer orients the inquiry because the
Court no longer considers it relevant. Since 1980, no Supreme Court majority opinion has relied
on it. Now the Court looks only for some alternative system—congressional or not, explicit or
No. 14-5451                           Koprowski v. Baker                            Page 26


not, equally effective or not—that protects the plaintiff’s interests. See, e.g., Minneci, 132 S. Ct.
at 623. That is precisely what this workers’ compensation regime does.

       For what it’s worth, this Bivens claim couldn’t succeed even with the Carlson dictum.
Carlson held that the Federal Tort Claims Act did not substitute for Bivens relief, because
Congress “made [] crystal clear that [it] views FTCA and Bivens as parallel, complementary
causes of action.” 446 U.S. at 20. Just the opposite is true here. Instead of saying that the
Inmate Accident Compensation Act serves as a “parallel, complementary” regime to Bivens, id.,
Congress treated the Act as “the exclusive remedy to protect” inmates injured on the job and as a
“substitute for a system of [tort] recovery,” Demko, 385 U.S. at 152–53; see also 28 C.F.R.
§ 301.319. Different congressional objectives lead to different results.

       Anomalies?      But this approach, Koprowski counters, creates “disparities” between
inmates injured off the job (who can recover under Bivens, see Carlson) and those injured on it
(who can’t recover under Bivens and are left to recover only under the Act, see Demko).
Appellant’s Supp. Br. 18. True enough. But if Congress wants one group to recover only as
provided by a workers’ compensation statute and another group to recover under the common
law, so be it: That’s quintessentially a legislative call. “Whether it makes sense to impose
asymmetrical liability . . . is a question for Congress, not us, to decide.” Malesko, 534 U.S. at
72.

       Many such anomalies, if anomalies they are, already exist in this area. Inmates injured in
identical fashion (say, by prison officials’ deliberate indifference) can recover under Bivens if
housed at a federally operated prison but not if housed at a privately operated prison. Minneci,
132 S. Ct. at 620, 623–24. Both are federal inmates, both are housed in federal prison, but only
one may get Bivens relief. Likewise, a person injured under the Due Process Clause can
generally recover under Bivens, see Davis, 442 U.S. at 243–44, but not when the injury occurs by
way of denial of social-security benefits, Schweiker, 487 U.S. at 424. These cases teach that the
specific, alternative (congressional) remedy displaces the general (judicial) Bivens remedy, even
if it means creating disparities among potential plaintiffs.
No. 14-5451                          Koprowski v. Baker                            Page 27


       Koprowski is not the first person to raise this concern in the setting of this workers’
compensation statute. Demko held that a federal prisoner injured on the job could not bring a
lawsuit against the United States. 385 U.S. at 153. But this holding created tension with the
Court’s prior decision that allowed such lawsuits for inmates injured off the job. United States v.
Muniz, 374 U.S. 150, 165–66 (1963). The Demko dissent protested that the majority’s holding
created an unjustified anomaly between inmates injured on the job and those injured off of it.
See 385 U.S. at 154–56 (White, J., dissenting). No matter, the Court concluded. What mattered,
the Court said, was that this plaintiff was covered by the Act’s exclusive workers’ compensation
regime.

       Adequate remedy? All that is well and good, Koprowski responds, but none of it changes
the reality that he likely will recover less than he would have recovered under Bivens. To make
matters worse, he doesn’t have other rights that he does under Bivens, such as “a jury right and [a
right to seek] punitive damages.” Appellant’s Supp. Br. 12.

       But Koprowski’s premise—that the Act’s remedies are less generous than Bivens—is not
necessarily so. As a general matter, Bivens is “more generous to plaintiffs in some respects” but
“less generous in others.”    Minneci, 132 S. Ct. at 625.       That’s the nature of a workers’
compensation system: readily available compensatory relief with no need to prove fault. This
case illustrates the point. Suppose Koprowski can prove only negligence. He would not recover
under Bivens (which requires deliberate indifference, Malesko, 534 U.S. at 73) but would recover
under this no-fault Act. Or suppose he cannot produce any evidence of any misconduct. He
would not survive summary judgment on a Bivens claim but would recover under the Act.

       Even if the Act will be more restrictive than Bivens in some settings, Koprowski’s
conclusion does not follow. Alternative remedies can be “less generous” than Bivens and still
exclude it—“say, by capping damages,” “forbidding recovery for emotional suffering,” or
“imposing procedural obstacles” on the plaintiff. Minneci, 132 S. Ct. at 625. They need not
compensate directly for constitutional injuries. Schweiker, 487 U.S. at 427–28. Some injuries
can even “go unredressed.” Malesko, 534 U.S. at 69. Koprowski seems to think that the only
alternative remedy that would satisfy this inquiry is Bivens itself or something like § 1983. But
the key implication of an alternative remedial scheme is that the pros and cons of that regime
No. 14-5451                             Koprowski v. Baker                         Page 28


suffice from Congress’s perspective, not necessarily the litigant’s perspective. And from that
perspective, Koprowski has an adequate “avenue for some redress” for the type of injury he
suffered. Id.; see 28 C.F.R. § 301.301(b).

        Demko confirms this conclusion. The Court noted that, to the extent the Act’s remedies
were less generous than tort relief, that decision was intentional; it reflected a conscious choice
by Congress to account for the “differing circumstances of prisoners and nonprisoners” and “the
special need of [this] class of prisoners.”        Demko, 385 U.S. at 152–53.       Any perceived
inadequacy of the Act’s remedies did not mean the judiciary needed to step in and allow a
separate remedy.      See id. at 153.     It meant that courts must enforce the Act as written.
Otherwise, even the existence of § 1983 claims would not prevent implied rights of action
against state officials in some settings, namely if the claimant could show that an implied right of
action directly under the Constitution would provide more relief than a § 1983 action does.

        Deterrence?     But is this alternative system adequate to deter individual officials’
constitutional violations? Koprowski says no. The Act provides relief from the United States,
he says, which will do little to deter individual officials.

        The problem with this distinction is that the Supreme Court has already rejected it. On
several occasions, the Court has held that a Bivens action was precluded by remedies that made
“no provision for . . . money damages against officials responsible for unconstitutional conduct.”
Schweiker, 487 U.S. at 424; see, e.g., Bush, 462 U.S. at 388. When Congress gives “meaningful
remedies against the United States,” the Court instructs, the Bivens remedy has no role to play.
E.g., Schweiker, 487 U.S. at 422 (quotation omitted).

        Koprowski’s existing remedies at any rate will deter individual officials in several ways.
For one, the officials’ unconstitutional conduct can be brought to light during the remedial
proceedings—first before an administrator, 28 C.F.R. § 301.305, then before a committee, id.
§ 301.306(b), then before the corporation’s Chief Operating Officer, id. § 301.313, then before
the courts, see 5 U.S.C. §§ 701–706. For another, the unconstitutional conduct can be addressed
through the “remedial mechanisms established by the [Bureau].” Malesko, 534 U.S. at 74; see
28 C.F.R. § 542.10(a). And for still another, the conduct can be laid bare and stopped by an Ex
No. 14-5451                           Koprowski v. Baker                            Page 29


parte Young action against the officials. See Malesko, 534 U.S. at 74. If an official isn’t
deterred by (1) administrative hearings about his conduct, (2) his bosses learning of it, (3) a
lawsuit addressing it, and (4) a court ordering it to stop, it’s hard to believe that a money-
damages lawsuit, complete with defenses of qualified immunity and indemnity, will do much
more in the way of deterrence.

       Exclusivity exceptions? Koprowski suggests that some workers’ compensation statutes
are not exclusive, as they allow certain claims against certain people. True enough. See, e.g.,
Mich. Comp. Laws § 418.131(1) (intentional tort exception). But he never contends that this Act
contains any such exception. Nor could he. The Act is “the exclusive remedy to protect”
inmates injured on the job. Demko, 385 U.S. at 152. It is not our role to create “exceptions to
that [exclusive] system without specific legislation to that effect.” Id. at 151 (quotation omitted).

       Other Circuits? Three other circuits, I must acknowledge, have come out the other way.
See Bagola v. Kindt, 39 F.3d 779, 780 (7th Cir. 1994); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th
Cir. 1996); Smith v. United States, 561 F.3d 1090, 1100–03 (10th Cir. 2009). But each one
follows outdated reasoning. The Seventh Circuit’s 1997 decision relied on the Carlson dictum,
which liberally (and presumptively) extended Bivens, see, e.g., Bagola v. Kindt, 131 F.3d 632,
637–40 (7th Cir. 1997), and which the parties agree no longer applies. The Ninth and Tenth
Circuits just adopted the Seventh Circuit’s “reasoning . . . as [their] own.” Smith, 561 F.3d at
1103; see Vaccaro, 81 F.3d at 857.

       The Carlson framework has been abrogated by cases like Malesko, Wilkie, and Minneci.
For example, Minneci, decided after all three of these circuit court cases, explains that Wilkie’s
“approach,” not Carlson’s, governs the Bivens analysis. 132 S. Ct. at 623, 625. Indeed, the
Seventh Circuit, which gave us the first opinion on this issue, has since recognized as much, see
Vance v. Rumsfeld, 701 F.3d 193, 198–99 (7th Cir. 2012) (en banc). If there is a material
division in the courts, it’s between the framework used by these three circuits and the framework
used by the Supreme Court today.

       The different frame of reference explains each of these outcomes. One says, for instance,
that inmates must be able to recover under Bivens or else they have no remedy against the
No. 14-5451                            Koprowski v. Baker                          Page 30


individual officials. But, as explained, that matters not under the updated framework. With the
inverted frame of reference, these circuits also see the Act’s no-fault scheme as a reason to apply
Bivens—to place blame on certain wrongdoers.            But again, the individual officials can be
deterred in other ways. And if anything, with the proper frame of reference, the no-fault scheme
cuts the other way. It shows just what Congress is willing to give up in this quid pro quo: No-
fault compensation in exchange for no tort liability.

       Not one of these cases, moreover, applies Hui. And for good reason: The Court decided
Hui after each of these cases. For my part, I do not see how one can grant relief to Koprowski
without slighting Hui.

       Nor does Congress’s purported “acquiescence” in these decisions tell us anything. Supra
at 6. “We do not expect Congress to make an affirmative move every time a lower court
indulges in an erroneous interpretation.” Jones v. Liberty Glass Co., 332 U.S. 524, 534 (1947).
But if its acquiescence means something, surely Congress has acquiesced more in Demko and in
the unbroken, thirty-six-year line of Supreme Court precedent limiting implied rights of action
than it has in three circuit court cases going against the grain.

       The majority seeing things differently, I respectfully dissent.
