Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on June 6 and 8, 2022 (Part I); and cases granted review on June 6, 2022 (Part II).
Opinion: Egbert v. Boule, 21-147
Egbert v. Boule, 21-147. In a 6-3 opinion, the Court held that there is no Bivens cause of action against a Border Patrol agent for Fourth Amendment excessive force or First Amendment retaliation. Robert Boule runs the Smuggler’s Inn on the border between Washington and Canada. The area is a “hotspot” for smuggling of people, drugs, money, and more. Boule was a confidential informant who also profited from persons crossing the border illegally. Boule informed Border Patrol Agent Erik Egbert that a Turkish man arriving in Seattle had scheduled transportation to the Inn. That afternoon, Egbert saw Boule’s vehicle with the license plate “SMUGLER” return to the Inn. Egbert followed onto the Inn’s property to check the passenger’s immigration status. Boule told Egbert to leave, but Egbert allegedly lifted Boule and threw him against the vehicle and onto the ground. Egbert left after determining that the passenger’s immigration paperwork was in order. Boule lodged a grievance with Egbert’s supervisor, alleging excessive force. He later filed an administrative claim asserting that Egbert retaliated against him by reporting him to state authorities and the IRS. These claims were denied, and Boule sued Egbert for damages, alleging claims under the Fourth and First Amendments. The district court declined to extend Bivens to these claims, but the Ninth Circuit reversed. In an opinion by Justice Thomas, the Court reversed the Ninth Circuit.
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Court held it had authority to create a cause of action under the Fourth Amendment against federal narcotics agents who allegedly used unreasonable force while conducting a warrantless search and seizure. The Court later created Bivens-type causes of action for (1) a former congressional staffer’s Fifth Amendment sex-discrimination claim, and (2) a federal prisoner’s Eighth Amendment claim of inadequate care. The Court has declined to recognize additional causes of action, however, because “in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts.” Congress is generally better suited to weigh economic concerns, administrative costs, and the impact suits will have on governmental operations. Although the Court has not dispensed with Bivens, new causes of action are “disfavored.” The Court previously applied a two-part test to determine whether to recognize a new cause of action, but (said the Court here) the test boils down to asking whether there is “any reason to think that Congress might be better equipped to create a damages remedy.” “If there is a rational reason to think that the answer is ‘Congress’—as it will be in most every case—no Bivens action may lie.” (Citation omitted.) For example, a court must refrain from creating a cause of action that involves a new category of defendants or special factors Bivens did not consider. Additionally, courts may not fashion a Bivens remedy if Congress has authorized an “alternative remedial structure,” even if that structure does not provide complete relief.
Applying these principles, the Court found that the Ninth Circuit erred by creating a new Fourth Amendment cause of action. In Hernandez v. Mesa, 140 S. Ct. 735 (2020), the Court declined to allow a cause of action for a claim against a Border Patrol agent who shot and killed a Mexican national across the border because regulating border agents has national security implications. Although the conduct in this case resembled the facts of Bivens more than Hernandez, the judiciary is “comparatively ill suited to decide whether a damages remedy against any Border Patrol agent is appropriate.” The Bivens inquiry “does not invite courts to independently assess the costs and benefits of implying a cause of action,” and the Ninth Circuit gave too much weight to the facts that, unlike in Hernandez, Egbert was not “literally at the border” and that Boule was a U.S. citizen. Additionally, Congress has provided for administrative remedies and agency investigations into alleged misconduct. Those remedies are not insufficient merely because plaintiffs like Boule have no right to participate or appeal. “So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy,” even if the available remedies are “not as effective as an individual damages remedy.”
The Court next held that the Ninth Circuit also erred by creating a cause of action for Boule’s First Amendment retaliation claim. The Court has never extended Bivens to the First Amendment, and the Court found “many reasons” to think Congress is better suited to authorize such a remedy. A plaintiff “can turn practically any adverse action into grounds for a retaliation claim.” Even a frivolous claim may impose significant discovery costs, and the threat of personal liability and harassment might unduly inhibit officials in discharging their duties, leading to new difficulties and expense for the government. Contrary to the Ninth Circuit’s reasoning, said the Court, the fact that retaliation claims are well established counsels against permitting Bivens relief because extending relief to common claims may significantly increase the government’s liability. Nor does the observation that Egbert’s retaliation was not within the scope of his duties weigh in favor of a new cause of action because the real question is whether courts are equipped to alter the framework for addressing such claims, not whether such claims might have merit.
Justice Gorsuch concurred in the judgment, writing that Bivens violated separation of powers by assuming legislative authority and the Court has “struggled for decades to find its way back.” According to Justice Gorsuch, “if the only question is whether a court is ‘better equipped’ than Congress to weigh the value of a new cause of action, surely the right answer will always be no,” because “to assign new private rights and liabilities” is “in every meaningful sense an act of legislation.” Justice Gorsuch found this case materially indistinguishable from Bivens, and by relying on national security risks the Court simply weighed the costs and benefits of those claims. Justice Gorsuch concluded that the Court should “forthrightly return the power to create new causes of action to the people’s representatives in Congress.”
Justice Sotomayor dissented in part, joined by Justices Breyer and Kagan. These justices argued that the majority “rewrites a legal standard it established just five years ago [in Ziglar v. Abbasi, 582 U.S. 120 (2017)], stretches national-security concerns beyond recognition, and discerns an alternative remedial structure where none exists.” “Just five years after circumscribing the standard for allowing Bivens claims to proceed, a restless and newly constituted Court sees fit to refashion the standard anew to foreclose remedies in yet more cases.” Justice Sotomayor found that Boule’s Fourth Amendment claim passed Ziglar’s two-step analysis, which asks (1) whether a case is meaningfully different from previous Bivens cases, and (2) whether “special factors counsel hesitation in recognizing a Bivens remedy in a new context.” In the dissent’s view, the only difference between Bivens and this case is that Egbert was a Border Patrol agent rather than a narcotics agent―a “trivial” distinction that could apply to any of the 83 federal law enforcement agencies with arrest authority. Justice Sotomayor disagreed with the “drive-by” assertion that national security was at issue; unlike the “international incident” in Hernandez, this incident took place entirely on U.S. soil and involved a U.S. citizen. Justice Sotomayor repeated the observation in Bivens that some constitutional violations are difficult to address except through damages actions, and she found that the administrative procedures in this case amounted to “no remedy whatsoever.”
Applying the two-part Ziglar test, Justice Sotomayor concurred that Boule’s First Amendment retaliation claim was not cognizable. First, the Court has never held that Bivens extends to First Amendment claims. Second, there is “reason to pause” before allowing a First Amendment claim due to the difficulty in defining a cause of action that would not “invite claims in every sphere of legitimate governmental action.”