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Justices add four new cases to their docket, including Bivens case, but won’t reconsider Bivens itself

Fifty years ago, in Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court ruled that a private individual could sue a federal agent for violating his Fourth Amendment rights, even when there was not a specific law authorizing a claim for damages. In the nine years after Bivens, the court recognized Bivens claims for damages for violations of the Fifth and Eighth Amendments, but in 2017 it stressed that “expanding the Bivens remedy is now a disfavored activity.”

On Friday, the justices agreed to decide whether a Bivens remedy should be available to the owner of an inn on the U.S.-Canada border who alleges that a U.S. Border Patrol agent violated both his Fourth Amendment rights and his First Amendment rights. But the justices declined a request to reconsider Bivens itself. The case, Egbert v. Boule, was one of four that the justices granted from their conference on Friday, for a total of three hours of argument time. The others are Ruan v. United States and Kahn v. United States (which the justices consolidated) and Marietta Memorial Hospital Employee Health Benefit Plan v. Davita, Inc.

Egbert v. Boule

Egbert arose in 2014, when the agent, Erik Egbert, went to the Smugglers Inn, whose back property line touches the U.S.-Canada border, and approached a car carrying a guest from Turkey. The inn’s owner, Robert Boule, asked Egbert to leave; when Egbert declined to do so, Egbert pushed Boule to the ground and asked the Turkish guest about his (legal) immigration status. Boule later complained to Egbert’s supervisors, prompting Egbert to suggest to the IRS that it investigate Boule.

Boule filed a Bivens action in federal court, arguing that Egbert had violated his First and Fourth Amendment rights. The district court ruled that Boule’s claims would impermissibly extend Bivens, but the U.S. Court of Appeals for the 9th Circuit reversed and allowed his claims to go forward. Over a dissent by 12 judges, the full court of appeals denied Egbert’s petition for rehearing.

Egbert came to the Supreme Court last summer. He asked the justices to weigh in on two specific questions related to the extension of Bivens: whether Bivens applies to First Amendment retaliation claims, and whether it extends to Fourth Amendment claims involving immigration enforcement. Describing Bivens as a “remnant of a bygone era that is at odds with modern precedent,” Egbert also urged the justices to repudiate Bivens altogether. In a brief order on Friday afternoon, the justices granted Egbert’s request to decide the first two questions relating to the extension of Bivens, but they turned down his request to consider overruling Bivens.

Ruan and Kahn

In Ruan v. United States and Kahn v. United States, the justices agreed to decide whether a doctor who has the authority to prescribe controlled substances can be convicted for unlawful distribution of those drugs when he reasonably believed that his prescriptions fell within professional norms. The question came to the court in April in the case of Xiulu Ruan, an Alabama doctor who specialized in pain management. The government contended that the doctor had prescribed medicine outside the standard of care – for example, prescribing opioids when physical therapy or a detox facility would have been more appropriate. Ruan countered that he had always acted in good faith, making individual assessments of what each patient needed.

The second case came to the court in July. The doctor in that case, Shakeel Kahn, argued that he did not know that his patients were abusing or selling the medicine that he prescribed for them — primarily opioids. He was sentenced to 25 years in prison. The justices granted both cases and consolidated them for one hour of oral argument.

Marietta Memorial Hospital

The justices also will weigh in on a dispute filed by DaVita, the country’s largest dialysis provider, over the interpretation of the Medicare Secondary Payer Act, which bars health plans from considering whether an individual is eligible for Medicare benefits because they suffer from kidney failure. A health plan also cannot provide different benefits to such individuals than they provide to others covered by the plan. After the U.S. Court of Appeals for the 6th Circuit ruled that the Marietta Memorial Hospital health plan discriminates against patients with kidney failure by providing less coverage for dialysis, the plan came to the Supreme Court, which granted its petition for review on Friday.

The justices will likely hear oral argument in the spring in the cases granted on Friday. More orders from Friday’s conference are expected on Monday at 9:30 a.m.

This article was originally published at Howe on the Court.

Correction (Nov. 10 at 9:34 a.m.): An earlier version of this article misstated federal agents involved in Bivens cases as FBI agents.

Recommended Citation: Amy Howe, Justices add four new cases to their docket, including Bivens case, but won’t reconsider Bivens itself, SCOTUSblog (Nov. 5, 2021, 8:46 PM),