Publications

Greetings, Court Fans!

Just like we promised, we’re back to talk about Egbert v. Boule (No. 21-147). As Court watchers like you likely know, in Bivens v. Six Unknown Federal Narcotics Agents (1971), the Court authorized a damages cause of action against federal officials for alleged violations of the Fourth Amendment, parallel to the cause of action that would exist against state officials under 42 USC 1983. But over the past decades, the Court has declined no fewer than 11 times to apply the Bivens remedy to federal officials’ alleged violations of constitutional rights in other circumstances. In Egbert, a 6-3 majority of the Court’s conservative Justices kept that streak alive, declining to recognize a Bivens remedy for a Fourth Amendment excessive-force claim or a First Amendment retaliation claim. But the Court also avoided going so far as to overrule Bivens entirely, as some Justices have urged. Bivens thus continues to survive for another day, though at this point in little more than name only. 

The backstory of Egbert is David Lynch-y. It begins in Blaine, Washington, a town that abuts the Canadian border. Respondent Robert Boule operates a bed-and-breakfast there named the “Smuggler’s Inn.” The name is apt: Because of its proximity to Canada (Boule’s property line actually extends across the border), illegal border crossers and drug runners have frequently used the inn to pass people and illicit goods into the United States. Blaine decided he should get in on the action, so he became a confidential informant for the feds. And to give his federal-informant business a boost, he launched a shuttle service, transporting guests between Seattle and his inn, while giving the Border Patrol a heads up if any of his passengers (or their luggage) might be of interest.

In 2014, Boule informed a border patrol agent, Erik Egbert, that he was going to be picking up a Turkish national from the Seattle airport and driving him to the Smuggler’s Inn for an overnight stay. Egbert was suspicious, seeing no reason why anyone would come all the way from Turkey to stay at a shabby B&B in Blaine (the Court’s opinion includes pictures of the accommodations lest you think we’re being mean). So Egbert camped out at the inn until Boule arrived (driving his black SUV with the custom license plate “SMUGLER”). Things then went a bit south, with Egbert allegedly roughing up Boule before determining that the Turkish guest’s paperwork was all in order. That night, the guest illegally entered Canada (a detail that doesn’t matter but is fun). Boule later lodged a grievance with Egbert’s supervisor, accusing Egbert of using excessive force. Egbert, in turn, allegedly retaliated against Boule by reporting him to the state DMV and the IRS for suspected illegal activity.

After the Border Patrol decided to take no action as to Boule’s grievance, Boule sued Egbert in his individual capacity, alleging excessive force in violation of the Fourth Amendment and retaliation in violation of the First. The district court declined to recognize a Bivens remedy for these causes of action and dismissed. But the Ninth Circuit reversed and reinstated the suit, over a multi-judge dissent from that court’s refusal to rehear the case en banc.

With those colorful facts out of the way, Justice Thomas, writing for a majority of the Chief and Justices Alito, Kavanaugh, and Barrett, turned to the history of Bivens. In Bivens itself, the Court recognized a cause of action against federal agents for a claim that federal officials violated the plaintiff’s Fourth Amendment rights by manacling him and threatening his family while arresting him for narcotics offenses. In the following years, the Court also applied Bivens to a Fifth Amendment sex-discrimination claim and an Eighth Amendment inadequate-care claim. But outside of those three cases, the Court has refused every request to imply a damages cause of action against federal officials for violating the Constitution. Instead, the modern trend views it as a legislative—not a judicial—task to create new causes of action. And since Congress has never enacted a corollary of Section 1983 for suits against federal officials, the Court has been reluctant to recognize Bivens actions in a new factual context if any “special factor” indicates that the judiciary is “at least arguably” less well equipped than Congress to weigh the costs and benefits of recognizing the claim. The Court has never catalogued all the factors that may counsel caution, but they include such things as extending Bivens to a new class of defendants or to a factual situation where recognizing a cause of action may have unpredictable “systemwide” consequences. Ultimately, this analysis (Thomas contended) asks a single question: Is there any reason to think that Congress might be better equipped to create a damages remedy for the specific claim at issue? If so, a Bivens remedy should not be supplied. And if that weren’t enough, the Court’s decisions also hold that Bivens remedies should not be recognized where Congress has already provided—or has authorized the Executive branch to provide—some alternative remedial structure for the alleged wrong.

Under this almost-impossible-to-satisfy framework, Thomas quickly disposed of the Ninth Circuit’s decision to recognize a Bivens remedy for Fourth Amendment excessive-force claims or First Amendment retaliation claims. As to the Fourth Amendment, Boule asserted his claim against a Border Patrol agent, who was carrying out his mandate to prevent the illegal entry into or exit from the United States of goods or persons. Because the Border Patrol’s activities implicate national security, Thomas concluded that Congress was better positioned to decide what, if any, cause of action should be recognized here. True, Boule’s case sounded a lot like the claim asserted in Bivens itself. But Bivens involved garden-variety law enforcement activities, not federal agents at the border. This difference was enough to refuse to extend Bivens to this case. And even if it weren’t, Congress has provided alternative remedies, namely the grievance process, which Boule himself had invoked. True too that this process didn’t accomplish much, but so long as Congress has created some remedy—even an inadequate one—the Court should not step in and impose Bivens on top of it.

As to the First Amendment, Thomas reached the same conclusion. Nearly every action by a government official could be characterized in a lawsuit as retaliation for something. And because a defendant’s retaliatory state of mind is not easily determined on the pleadings or at summary judgment, recognizing retaliation suits would give rise to substantial litigation and discovery. Those potential consequences were enough for the Court to step aside and let Congress craft an appropriate remedy if it wishes.

Justice Gorsuch, writing only for himself, briefly concurred. He agreed with the Court’s summary of where the law of Bivens now stands: courts should extend Bivens to a new factual context only when there is no possible reason to think that Congress might be better equipped than the courts to create a cause of action. But if that’s really the test, then the Court might as well just come out and say that Bivens should never apply, because there’s always some factor a court can think of that might counsel caution. He would thus get out of the business of analyzing Bivens entirely, leaving the task of recognizing new causes of action against federal officials entirely to Congress.

Justice Sotomayor, joined by Justices Breyer and Kagan, concurred as to the First Amendment claim—albeit on different grounds—but dissented as to the Fourth Amendment one. Beginning with the latter, she saw little to distinguish the case from Bivens itself: Both involved allegations that a federal agent infringed the plaintiff’s Fourth Amendment rights by entering property without a warrant and then using excessive force. The defendant in Bivens may have been an agent of the predecessor of the DEA, while Egbert was a CBP officer, but the specific agency the federal defendant works for is a distinction without a difference. This case thus did not call for the Court to “extend” Bivens to any new context at all. But even if it did, the dissenters saw no “special reason” why the Court should foreclose Bivens relief. The only factor the Court pointed to—the proximity of the U.S.-Canada border—was irrelevant: At bottom, Egbert’s claim was that a federal agent used excessive force against a U.S. citizen on U.S. soil. While some of the Court’s recent cases have refused to extend Bivens to suits involving the border, those cases involved much different facts, such as federal agents harming people on the other side of the border or federal agents injuring people who were present in the United States illegally. None of those unique circumstances were present in this garden-variety claim by a U.S. citizen against a federal officer for using excessive force while intruding on the citizen’s property without a warrant.

On the First Amendment claim, Sotomayor agreed with the majority, albeit through a slightly different analysis. In her view, recognizing a First Amendment retaliation claim against federal officials would raise difficult, perhaps intractable, line-drawing problems. Such claims could be brought against essentially any federal official for nearly anything they do and thus would not be restricted to the law-enforcement context where Bivens is most at home. Under the Court’s traditional approach, this was enough to counsel caution and leave the matter to Congress.

Having disposed of the merits rather quickly, Sotomayor then devoted the rest of her opinion to criticizing the majority’s description of the law of Bivens. As she saw it, much of the language in the majority’s opinion mischaracterized or conflicted with the Court’s prior Bivens precedent. For one, the Court’s determination that this was a new Bivens context—and not a factual scenario well within the scope of Bivens itself—seemed to create a more-exacting new-context inquiry, where any trivial difference from a prior case is enough of an excuse to decline to recognize a Bivens remedy. And she criticized at length the majority’s conclusion that this case truly involved “national security” concerns, pointing out that prior Bivens cases had already warned that national security should not “become a talisman to ward off inconvenient claims.” Finally, she took issue with the majority’s apparent conclusion that the Border Patrol is so unique from the rest of federal law enforcement that courts could never recognize a Bivens claim against CBP officers. She concluded with an admonition to lower courts that though the Supreme Court’s analysis in this case may be hard to satisfy, Bivens nonetheless remains viable and the Bivens remedy should be recognized when appropriate.

That’s all for this week. Although the Court hasn’t yet announced it, we’re expecting the Court to issue more decisions next week (probably as soon as Monday) as it continues to work through the dozens of pending cases to be decided by the end of the month. Until next time.

Dave and Tadhg