A Slight Turning Point for Accountability: Why Ending the BOP–AFGE Agreement Matters for Inmate Litigation

For decades, the Bureau of Prisons (BOP) operated with one of the most powerful shields in government: its union contract with the American Federation of Government Employees (AFGE). That shield didn’t just protect staff paychecks or working conditions — it gave thousands of federal correctional officers a near-blanket defense from accountability. When inmates filed lawsuits, the United States Attorney's Office and union lawyers were there to defend staff, often at no personal cost to the employee accused of abuse, neglect, retaliation or worse.

On September 25, 2025, BOP Director William Marshall III tore down a part of that shield, canceling the union’s collective bargaining agreement under the authority of a presidential executive order. From now on, BOP staff will no longer enjoy free counsel and grievance protections by default. Instead, if they are sued, they will either be represented by the USAO or have to retain and pay for their own lawyers. This change fundamentally alters the balance of incentives inside federal prisons.

Tony Cheng, (a Yale student) published his thesis where his research on inmate litigation reminds us that prisoners already face immense hurdles in bringing civil rights claims: exhausting complicated grievance procedures, litigating without lawyers, and meeting nearly impossible burdens of proof. Meanwhile, staff had every advantage — free representation, strong union protections, and a system tilted to accept their word over the word of inmates. This imbalance meant that even documented abuses, like guards filing false reports after assaults, rarely resulted in accountability.

The new reality changes that calculus. When every act of retaliation, every incident of deliberate indifference, and every use of excessive force carries the possibility of personal financial liability, staff will have new reasons to pause before abusing their authority. Without a union lawyer waiting in the wings, a single civil rights lawsuit could mean thousands of dollars in personal legal costs. That prospect alone could push officers to treat people more fairly, follow policy more closely, and engage less in the misconduct that fuels litigation.

Bivens and Medical Neglect: A Remaining Path to Justice

One of the most important tools in this new environment is the Bivens cause of action. In Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court recognized that federal inmates can sue individual officers for deliberate indifference to serious medical needs under the Eighth Amendment. The Court emphasized that damages actions were essential because they provided a deterrent against unconstitutional conduct, noting that “the threat of damages has a deterrent effect, particularly so in the case of individual federal officials.”

While later decisions like Ziglar v. Abbasi, 582 U.S. 120 (2017), and Egbert v. Boule, 596 U.S. 482 (2022), have narrowed the reach of Bivens, courts have consistently reaffirmed its application to medical neglect. Just this year, the Ninth Circuit in Schwartz v. Miller (2025) held that an inmate’s claims of untreated thyroid dysfunction, chest pain, and kidney damage were “identical in all meaningful respects” to Carlson. The panel rejected arguments that the Prison Litigation Reform Act (PLRA) or the BOP’s grievance program foreclosed such claims, confirming that deliberate indifference to serious medical needs remains a viable Bivens claim.

Other decisions reinforce this principle. In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court explained that deliberate indifference exists when officials know of and disregard an excessive risk to inmate health or safety. The Ninth Circuit in Colwell v. Bannister, 763 F.3d 1060 (9th Cir. 2014), held that prison officials were deliberately indifferent when they denied medically necessary cataract surgery. More recently, in Stanard v. Dy, 88 F.4th 811 (9th Cir. 2023), the court confirmed that even non-emergent but chronic medical conditions, like untreated Hepatitis C, can sustain a Bivens claim under Carlson.

These cases send a clear message: when federal prison staff ignore or delay necessary medical treatment, they may be personally liable. And now, without union-backed lawyers to insulate them, that liability carries real financial consequences.

Why This Matters

For years, advocates have argued that the AFGE union slowed reform and shielded staff from accountability. As Rabbi Moshe Margaretten noted, commonsense policies that would have benefited both staff and inmates were routinely stalled by union objections. By removing this roadblock, Director Marshall’s decision doesn’t just free management — it strengthens inmates’ ability to use litigation as a check on abuse.

Every inmate who suffers untreated seizures, denied medication, or ignored medical crises can point directly to Carlson and its progeny as authority. And every BOP staff member now has to consider: is denying care worth the personal cost of hiring a private lawyer to defend against a Bivens suit, if the USAO doesn't step in to provide them counsel?

Of course, risks remain. The power imbalance between guards and inmates has not vanished, and retaliation fears are still real. But without the union’s protective umbrella, the cost of misconduct is higher, and the incentive to de-escalate and act lawfully is stronger. If used wisely, this moment could mark the beginning of a more accountable Bureau of Prisons — one where litigation has teeth, and where respect for basic rights is no longer optional but necessary for self-preservation.

Sources:

• Cheng, Tony. Mass Incarceration: A Legal Dilemma of Prisoners’ Civil Lawsuits. Senior Thesis, Department of Political Science, Yale University, 2011. Link

• Schwartz v. Miller, No. 23-1343, 9th Cir. Aug. 28, 2025 (reaffirming Carlson Bivens claims for deliberate indifference to serious medical needs)

• Carlson v. Green, 446 U.S. 14 (1980).

• Farmer v. Brennan, 511 U.S. 825 (1994).

• Colwell v. Bannister, 763 F.3d 1060 (9th Cir. 2014).

• Stanard v. Dy, 88 F.4th 811 (9th Cir. 2023).