Breaking News

Justices weigh the effect of foreign borders and national security in Bivens actions

Woman speaking at lectern in front of three justices.

The Supreme Court on Wednesday returned to the scope of the right to sue federal officers for damages under Bivens v. Six Unknown Named Agents, in a case arising from events surrounding an (unfairly) disparaged inn and suspicious characters near the U.S.-Canada border. The point of departure in the argument in Egbert v. Boule was whether the involvement of a Customs and Border Patrol agent investigating immigration issues near the border made this a new case outside the recognized cause of action or whether the case entailed ordinary domestic law-enforcement activities that happened to occur near the border, bringing it within the Bivens “heartland.”

Respondent Robert Boule is a U.S. citizen who owns and runs the Smuggler’s Inn, a bed-and-breakfast abutting the Canadian border in Blaine, Washington; drives a car with a SMUGLER license plate; and worked as a confidential informant for the Customs and Border Patrol. Petitioner Erik Egbert, a Border Patrol agent, attempted to speak with a guest, newly arrived from Turkey via New York, outside the inn. When Boule asked Egbert to leave his property and attempted to intervene, Egbert shoved him to the ground; when Boule complained to Egbert’s superiors, Egbert allegedly contacted the Internal Revenue Service and state agencies, resulting in a tax audit and investigations of Boule’s activities. Boule sued Egbert for violating his First Amendment and Fourth Amendment rights.

Egbert’s arguments

Sarah Harris argued for Egbert, telling the court that it should not extend Bivens for the first time in 40 years and that Bivensextensions clash with modern precedent. She argued that separation of powers provides the key consideration, barring new claims where Congress legislates in some area and has suggested doubts about the need for a damages remedy. And claims against agents involved in border security implicate national security.

Chief Justice John Roberts and Justices Clarence Thomas, Sonia Sotomayor, and Stephen Breyer pushed Harris on some version of how this case differs from Bivens to become a “new context.” Both cases involved Fourth Amendment claims for unreasonable search and excessive force against a U.S. citizen in his home; the differences involve the federal agency and the geography near the border. Harris emphasized the border as a unique location and the unique statutory mandate and rules of engagement for Border Patrol agents (and perhaps all agents, regardless of agency) at the border, where their activities implicate national security. Breyer identified 83 federal agencies that perform some form of law enforcement and seem alike — agents carry firearms, make arrests, and provide police protection — and wondered whether minor differences such as the location or month of the events can dictate whether each agency’s offers are subject to Bivens suits. Harris said the agency’s statutory mission matters, so it is impossible to group them together in a single answer.

Justice Elena Kagan followed that all law-enforcement officers do what is necessary in a situation, sometimes performing functions beyond their “wheelhouse.” Harris responded that problems are acute with the Border Patrol — given the border locations in which they operate, the separation of powers and national security concerns, and courts’ inability to perform the cost-benefit analysis necessary to decide when officers should be subject to the burden of private litigation. Justice Amy Coney Barrett wondered whether to focus on the agency’s broad mission or on the officer’s function in particular events, proposing a case in which Egbert helped local law enforcement in a domestic dispute; Harris insisted courts look at both, because it is difficult to carve distinctions.

The federal government’s arguments

Assistant to the Solicitor General Michael Huston argued for the United States in support of Egbert. He said the First Amendment retaliation claim involves a new context and multiple factors weigh against extending Bivens to that context. Retaliation claims are easy to allege but difficult to prove, and this case involved nothing more than Egbert giving a tip to other agencies. Huston said the Fourth Amendment claim has a “clear and strong connection” to national security. He later argued that the first step of the framework set forth in Ziglar v. Abbasi (whether the case involves a new context) is a quick check to compare prior cases, while the second step (whether special counsel hesitation about granting an extension) does the real analytical work.

Kagan pressed Huston on how this case implicates national security — Egbert checked the immigration status of one person and the case did not involve a cross-border shooting (as in Hernandez v. Mesa) or implicate international relations, as Canada does not care about what Egbert did in this situation or whether he was subject to suit for his conduct. Huston disagreed. Egbert was protecting the border based on a tip about someone undertaking suspicious travel who might be smuggling drugs or people across the border. Border Patrol agents work with Royal Canadian Mounted Police, and Canada cares about these lawsuits if they have a chilling effect on U.S. agents and result in more people unlawfully crossing into Canada.

Roberts and Justice Neil Gorsuch pushed Huston to identify a case in which a Bivens claim would be permissible, because it matches prior situations or because special factors are absent. Huston conceded a routine domestic search-and-seizure or excessive-force claim against an FBI agent or Park Police officer, unless it occurred near the border or involved terrorism investigations.

Barrett introduced the theme of skepticism — whether new Bivens actions require a close factual fit to prior cases and whether courts should err in favor of narrowly defining a case’s context and construe the facts against recognizing a new claim. Huston agreed; creating a cause of action is a legislative function, therefore any extension of Bivens is disfavored and courts must be skeptical in the second step of the analysis.

Boule’s arguments

Felicia Ellsworth argued for Boule. She began with the Fourth Amendment claim, which is “indistinguishable” from Bivens — a federal agent on private property without a warrant and using excessive force; that he was inquiring about someone’s visa status does not change the situation. The case differs from Abbasi and Hernandez, raising no foreign policy or extraterritoriality concerns. Ellsworth argues that the First Amendment retaliation claim triggers no special factors and is not subject to alternative remedies. The Westfall Act, which offers remedies against the United States for agents’ tortious acts, preserved Bivens for constitutional claims. Acknowledging that the court has narrowed Bivens, Ellsworth insisted the cause of action serves important functions.

Four justices — Samuel Alito, Brett Kavanaugh, Kagan, and Barrett — emphasized that the relevant events occurred on the border. Ellsworth argued that ordinary law-enforcement conduct performed by Border Patrol agents along the border remains ordinary law-enforcement conduct and does not create a categorical exclusion from Bivens; otherwise Bivens cannot apply to all Border Patrol agents along a 5,500-mile land border with Canada. Responding to hypotheticals from Alito, she agreed that there may be no claim where an officer stationed at a border checkpoint tackles a person running in or out of the United States carrying drugs. But the inquiry turns on what the officer is doing at the challenged time, not his usual duties. Ellsworth returned to Egbert’s conduct — he asked Boule’s Turkish-national guest about his visa status, then said his job was done after confirming the guest was lawfully in the United States; Egbert did not ask about the guest’s intentions and was not investigating or preventing unlawful border-crossing or cross-border criminal activity.

Barrett and Sotomayor raised judicial skepticism and whether courts should place a thumb on the scale against allowing claims in new contexts. Ellsworth agreed that courts should be skeptical, but not that they should place a thumb on the scale. She agreed with Sotomayor that the Fourth Amendment claim falls in the “heartland” of Bivens. And she conceded to Barrett that the First Amendment claim involved an “uphill battle,” but insisted that no special factors counseled hesitation.

Roberts, Gorsuch, and Kavanaugh raised concerns for the overall structure of the Bivens analysis. Gorsuch and Kavanaugh stated that the two steps bleed into one another. Roberts twice suggested that the existence of a cause of action should not be fact-specific; Congress does not parse specific facts of each case but decides at the macro level whether to create a cause of action subjecting particular officers to suit for their conduct.

Recommended Citation: Howard M. Wasserman, Justices weigh the effect of foreign borders and national security in Bivens actions, SCOTUSblog (Mar. 3, 2022, 9:51 AM),