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Court constricts, even if it does not quite eliminate, damages actions under Bivens

Rejecting Fourth Amendment excessive-force and First Amendment retaliation damages claims against a U.S. Border Patrol agent by a U.S. citizen for an incident on his property near the U.S.-Canada border, the Supreme Court in Egbert v. Boule narrowed, but did not eliminate, private civil damages actions for constitutional violations by federal officials under Bivens v. Six Unknown Named Agents. Justice Clarence Thomas wrote for a five-justice majority; Justice Neil Gorsuch concurred in the judgment; Justice Sonia Sotomayor concurred in the judgment in part and dissented in part for Justices Stephen Breyer and Elena Kagan.

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.

Majority opinion

The majority’s conclusion is unsurprising, given that the court has rejected every Bivens claim since 1980. But the opinion makes several ground-breaking and unexpected moves that may render future damages actions near-impossible.

First, although not relevant to the analysis, the majority highlights the shadier sides of Boule’s business. These include drug seizures at the inn, Boule’s role as a paid government informant, and his Canadian conviction for human trafficking. It also discusses his practice of providing shuttle services for up to $150 per hour, requiring guests to pay for a night at the inn even if not staying there, and refusing to provide refunds to guests arrested at the inn on Boule’s tips to law enforcement. The opinion includes a photograph of the inn’s sparse lodgings “for which Boule’s Turkish guest would have traveled more than 7,500 miles.”

Second, the court recites the two-step inquiry established and applied in Ziglar v. Abbasi and Hernandez v. Mesa — whether the case involves an “extension” of Bivens into a “new context” that is “different in a meaningful way from previous Bivens cases decided by this Court,” and if so, whether “special factors … counsel hesitation about granting the extension.” But “those steps often resolve into a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Later, the majority describes this new, singular question as “whether there is a rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.’” Stated another way, “we ask whether ‘there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy’ at all.”

Third, the special-factors analysis must be conducted at a high level of generality. The court must ask broadly whether judicial intrusion into a “given field” is inappropriate. The question in this case is not whether to imply an action against Egbert on the unique facts of this case, but against Border Patrol agents generally. Neither the factual similarities of this case to Bivens nor its factual distinctions from Hernandez — U.S. citizen plaintiff, actions on the U.S. side of the border rather than straddling the border, injury within the U.S. — made a difference.

Fourth, the court identifies an adequate alternative remedy (a special factor) in the Border Patrol’s internal grievance processes. The process does not entitle the complainant to participate, is not subject to judicial review, and does not provide an individual remedy to the complainant, focusing on disciplining the officer misconduct. But Bivens “is concerned solely with deterring the unconstitutional acts of government officers” with the goal of preventing constitutional violations.

Fifth, the court holds that no Bivens claim is available for First Amendment retaliation, because for “many reasons” Congress, not the court, is better suited to authorize such a damages remedy. Allowing First Amendment damages claims imposes costs and burdens on federal officers affecting how they perform their duties; Congress should decide whether the public interest is served by allowing damages and imposing those costs. The court rejects Boule’s argument that a First Amendment retaliation claim is similar to the employment-discrimination claim the court allowed in Davis v. Passman — both turn on the defendant’s motive. But Davis predates the court’s new approach. Moreover, that a new right is parallel to a recognized right is insufficient to extend the Bivens right of action.

Finally, Thomas closes the opinion by citing dissents and concurrences by Bivens detractors, including himself, and stating the court would decline to recognize any cause of action under the Constitution if writing on a clean slate. But the court need not reconsider Bivens itself to decide this case and therefore does not do so.

Gorsuch’s concurrence

Gorsuch agrees with the majority’s new single-question approach in asking whether Congress is better equipped than courts to decide whether a damages action should be available. But, he argues, the answer to that question is always yes, because the power to create and assign private rights and liabilities is “in every meaningful sense an act of legislation.” If a private action is unavailable in this case — given the closeness of its facts to Bivens — “it’s hard to see how they ever could.” Gorsuch therefore would take the “next step and acknowledge explicitly what the Court leaves barely implicit” — that the exclusive power to create new causes of action belongs to Congress. It is fairer to litigants and lower courts to not hold out “false hope” that a private damages action might be available.

Sotomayor’s concurrence and dissent

Sotomayor, Breyer, and Kagan agree that Boule cannot bring the First Amendment retaliation claim. But they argue that the majority contravenes precedent in rejecting his Fourth Amendment claim, which should be available by applying Ziglar and Hernandez, given the factual similarity between this case and Bivens. The problem, Sotomayor argues, is that the majority fails to follow the standard it created five years ago in Ziglar; instead, it refashions a new, starkly different standard to foreclose more remedies by selectively quoting precedents and presenting the new standard as if it were always the rule.

Sotomayor aims at three points from the majority opinion. One is its hyperbol[ic]” invocation of national security as a “talisman” to eliminate any claims against border-patrol officials, regardless of their conduct and where it occurs. A second is the majority’s insistence that a claim involves a new context when it involves line officers of a different federal agency; that means every claim involves a new context, since the agency for which the defendants in Bivens worked, the Federal Bureau of Narcotics, no longer exists. The third is the majority recognizing internal agency disciplinary proceedings as an alternative remedial scheme, where sanctions on the officer provide no relief or remedy to the injured plaintiff.

The dissent ends by suggesting the majority’s new approach disregards precedent recognizing the crucial role that damages suits play in deterring constitutional misconduct by federal officials. It thereby “closes the door” to suits by many who will “suffer serious constitutional violations at the hands of federal agents.”

Recommended Citation: Howard M. Wasserman, Court constricts, even if it does not quite eliminate, damages actions under Bivens, SCOTUSblog (Jun. 8, 2022, 9:42 PM),