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


Robert Boule owns a bed-and-breakfast—the Smuggler’s Inn—in Blaine, Washington. The inn abuts the international border between Canada and the United States. Boule at times helped federal agents identify and apprehend persons engaged in unlawful cross border activity on or near his property. But Boule also would provide transportation and lodging to illegal border crossers.

Often, Boule would agree to help illegal border crossers enter or exit the United States, only to later call federal agents to report the unlawful activity. In 2014, Boule informed Erik Egbert, a U. S. Border Patrol agent, that a Turkish national, arriving in Seattle by way of New York, had scheduled transportation to Smuggler’s Inn.

When Agent Egbert observed one of Boule’s vehicles returning to the inn, he suspected that the Turkish national was a passenger and followed the vehicle to the inn. On Boule’s account, Boule asked Egbert to leave, but Egbert refused, became violent, and threw Boule first against the vehicle and then to the ground. Egbert then checked the immigration paperwork for Boule’s guest and left after finding everything in order. The Turkish guest unlawfully entered Canada later that evening.

Boule filed a grievance with Egbert’s supervisors and an administrative claim with Border Patrol pursuant to the Federal Tort Claims Act (FTCA). Egbert allegedly retaliated against Boule by reporting Boule’s “SMUGLER” license plate to the Washington Department of Licensing for referencing illegal activity, and by contacting the Internal Revenue Service and prompting an audit of Boule’s tax returns. Boule’s FTCA claim was ultimately denied, and Border Patrol took no action against Egbert for his use of force or alleged acts of retaliation.

Boule then sued Egbert in Federal District Court, alleging a Fourth Amendment violation for excessive use of force and a First Amendment violation for unlawful retaliation. Invoking Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), Boule asked the District Court to recognize a damages action for each alleged constitutional violation. The District Court declined to extend Bivens as requested, but the Court of Appeals reversed.

The United States Supreme Court reversed the 9th Circuit and held that Bivens does not extend to create a cause of action for Boule’s Fourth Amendment excessive force claim against the U.S. Border Patrol or a First Amendment violation for unlawful retaliation.


A. Excessive force claim against Agent Egbert

In Bivens, the Court held that it had authority to create a damages action against federal agents for violating the plaintiff’s Fourth Amendment rights (excessive force during arrest). Over the next decade, the Court also fashioned new causes of action under the Fifth Amendment, see Davis v. Passman, 442 U. S. 228 (1979) (sex discrimination in federal employment), and the Eighth Amendment, see Carlson v. Green, 446 U. S. 14 (1980) (inadequate care in prison).

Since then, however, the Court has come to appreciate more fully the tension between judicially created causes of action and the Constitution’s separation of legislative and judicial power and has declined 11 times to imply a similar cause of action for other alleged constitutional violations.

Rather than dispense with Bivens, this Court now emphasizes that recognizing a Bivens cause of action is a disfavored judicial activity.

The analysis of a proposed Bivens claim proceeds in two steps: A court asks first whether the case presents “a new Bivens context”—i.e., is it “meaningfully different from the three cases in which the Court has implied a damages action,” and, second, even if so, do “special factors” indicate that the Judiciary is at least arguably less equipped than Congress to “weigh the costs and benefits of allowing a damages action to proceed.”

This two step inquiry often resolves to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy. Further, under the Court’s precedents, a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, “an alternative remedial structure.”

The Court of Appeals conceded that Boule’s Fourth Amendment claim presented a new Bivens context, but its conclusion that there was no reason to hesitate before recognizing a cause of action against Egbert was incorrect for two independent reasons.

(1) First, the risk of undermining border security provides reason to hesitate before extending Bivens into this field. In Hernández, we declined to create a damages remedy for an excessive force claim against a Border Patrol agent because regulating the conduct of agents at the border unquestionably has national security implications.

That reasoning applies with full force here. The Court of Appeals disagreed because it viewed Boule’s Fourth Amendment claim as akin to a conventional excessive force claim, as in Bivens, and less like the cross-border shooting in Hernández.

But that does not bear on the relevant point: Permitting suit against a Border Patrol agent presents national security concerns that foreclose Bivens relief. Courts should ask whether there is any reason to think that judicial intrusion into a given field might be harmful or inappropriate. The proper inquiry here is whether a court is competent to authorize a damages action not just against Agent Egbert, but against Border Patrol agents generally. The answer is no.

(2) Second, Congress has provided alternative remedies for aggrieved parties in Boule’s position that independently foreclose a Bivens action here. By regulation, Border Patrol must investigate alleged violations and accept grievances from any persons. 8 CFR §§287.10(a)–(b).

Boule claims that this regulatory grievance procedure was inadequate, but this Court has never held that a Bivens alternative must afford rights such as judicial review of an adverse determination. Bivens is concerned solely with deterring the unconstitutional acts of individual officers.

And, regardless, the question whether a given remedy is adequate is a legislative determination. As in Hernández, this Court has no warrant to doubt that the consideration of Boule’s grievance secured adequate deterrence and afforded Boule an alternative remedy.

B. First Amendment retaliation claim

There is no Bivens cause of action for Boule’s First Amendment retaliation claim. That claim presents a new Bivens context, and there are many reasons to think that Congress is better suited to authorize a damages remedy.

Extending Bivens to alleged First Amendment violations would pose an acute risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. In light of these costs, Congress is in a better position to decide whether or not the public interest would be served by imposing a damages action.

The Court of Appeals’ reasons for extending Bivens in this context—that retaliation claims are “well established” and that Boule alleges that Agent Egbert was not carrying out official duties when the retaliation occurred lack merit.