Egbert v. Boule
596 U. S. ____ (2022) (2022)
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Rule of Law:
An implied cause of action for damages under Bivens v. Six Unknown Fed. Narcotics Agents will not be extended to new contexts, such as Fourth Amendment excessive force claims against Border Patrol agents or First Amendment retaliation claims, where national security is implicated or an alternative remedial structure exists.
Facts:
- Robert Boule owned and operated the 'Smuggler’s Inn,' a bed-and-breakfast located on his property which abuts the U.S.-Canada border in Washington.
- Boule served as a paid confidential informant for federal agencies, reporting on unlawful cross-border activity.
- Concurrently, Boule had a business of providing transportation and lodging to individuals who would then illegally cross the border, sometimes reporting them to federal agents afterward.
- On March 20, 2014, Boule informed U.S. Border Patrol Agent Erik Egbert that a Turkish guest would be arriving at the Inn.
- When the guest arrived, Agent Egbert followed the vehicle into Boule's driveway to check the guest's immigration status.
- Boule asked Agent Egbert to leave his property, but Egbert refused.
- According to Boule, Agent Egbert then became violent, throwing Boule against the vehicle and then to the ground, causing physical injury.
- After Boule filed an administrative grievance against Egbert, Egbert allegedly retaliated by reporting Boule’s 'SMUGLER' license plate to state authorities and contacting the IRS, which prompted an audit of Boule's tax returns.
Procedural Posture:
- Robert Boule filed an administrative claim with Border Patrol pursuant to the Federal Tort Claims Act (FTCA), which was ultimately denied.
- An internal Border Patrol investigation took no disciplinary action against Agent Egbert.
- Boule sued Agent Egbert in his individual capacity in the U.S. District Court for the Western District of Washington, seeking damages under Bivens for alleged violations of his Fourth and First Amendment rights.
- The District Court declined to extend a Bivens remedy to Boule’s claims and granted judgment for Agent Egbert.
- Boule, as appellant, appealed to the U.S. Court of Appeals for the Ninth Circuit, with Egbert as appellee.
- The Court of Appeals reversed the District Court, holding that Bivens remedies were available for both of Boule's claims.
- Agent Egbert petitioned the U.S. Supreme Court for a writ of certiorari, which was granted.
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Issue:
Does the implied cause of action for damages under Bivens v. Six Unknown Fed. Narcotics Agents extend to a Fourth Amendment excessive force claim and a First Amendment retaliation claim against a U.S. Border Patrol agent for conduct occurring on private property in the United States near the international border?
Opinions:
Majority - Justice Thomas
No, the implied cause of action under Bivens does not extend to these claims. Recognizing a Bivens cause of action is a 'disfavored judicial activity,' and the central question is whether Congress is better equipped than the courts to create a damages remedy. For the Fourth Amendment claim, this case presents a new context involving border security, which has national security implications that provide a reason for judicial hesitation. Furthermore, the existence of an alternative remedial structure—the Border Patrol’s internal grievance process—independently forecloses a Bivens action, as the adequacy of such a remedy is a legislative determination. For the First Amendment claim, Bivens has never been extended to this context, and creating such a remedy would pose an acute risk of chilling federal officials in the discharge of their duties due to the ease of alleging retaliatory intent.
Concurring in the judgment - Justice Gorsuch
No, the claims cannot proceed. Bivens itself was a misstep that crossed the line into legislative authority, which is a power the Constitution does not grant to federal courts. The Court's 'new context' and 'special factors' analysis is just a form of legislative-style balancing of costs and benefits that courts should not perform. Rather than continuing to apply this flawed framework, the Court should forthrightly return the power to create new causes of action to Congress, where it belongs.
Concurring in the judgment in part and dissenting in part - Justice Sotomayor
Yes, Bivens should extend to the Fourth Amendment claim, but no, it should not extend to the First Amendment claim. For the Fourth Amendment claim, this case does not present a new context; it is a conventional excessive force claim against a rank-and-file law enforcement officer on U.S. soil, which is materially indistinguishable from Bivens. The majority exaggerates national security concerns and incorrectly treats a non-remedial internal grievance process as an adequate alternative remedy. For the First Amendment claim, I agree it cannot proceed under existing precedent because it is a new context and raises difficult line-drawing problems, similar to those in Wilkie v. Robbins, making Congress better suited to address it.
Analysis:
This decision significantly restricts the availability of Bivens remedies by solidifying an extremely deferential standard toward Congress. It establishes that if there is any reason to think Congress is better suited to create a remedy—such as the involvement of national security or the existence of any alternative administrative process—courts must refrain from extending Bivens. This creates a nearly insurmountable barrier for plaintiffs in new contexts and effectively grants categorical immunity to certain classes of federal agents, like Border Patrol, from Bivens liability. The ruling signals the Court's continued retreat from judicially-created remedies and places the onus for creating accountability for federal officers squarely on a politically gridlocked Congress.
